State v. Garrett
| Decision Date | 12 June 1967 |
| Docket Number | No. 52111,No. 2,52111,2 |
| Court | Missouri Supreme Court |
| Parties | STATE of Missouri, Respondent, v. Billy Joe GARRETT, Lonnie Garrett, and Sam Irby, Appellants |
Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Special Asst. Atty. Gen., Pacific, for respondent.
Linus E. Young, Portageville, for appellants.
These defendants were charged jointly by amended information with first degree robbery by means of a dangerous and deadly weapon, alleged to have been committed in the County of New Madrid on October 27, 1965. Each was also charged with one or more convictions of prior felonies and with imprisonment therefor, Billy Joe Garrett with three, Sam Irby with four, and Lonnie Garrett with one. They were tried jointly and the jury, in separate verdicts, found all three guilty of 'Robbery 1st Degree.' Billy Joe Garrett was sentenced by the court to a term of fifty years, Sam Irby to a term of forty years, and Lonnie Garrett to a term of thirty years, after separate motions for new trial had been filed and overruled. The defendants were represented by appointed counsel at the trial and they are represented here also by appointed, but different, counsel. In view of the fact that appellants' brief raises only the question that venue was not sufficiently shown, our review of the evidence will be rather brief. Criminal Rule 28.02, V.A.M.R. The case was tried at New Madrid.
At about 6:00 p.m. on October 27, 1965, Isaac J. Barker, Larry Richards and R. L. Richards were returning to the home of R. L. Richards, after threshing beans; they were traveling south on State Highway 80 which will be referred to later. The two Richards brothers were in a pickup truck a short distance ahead of Barker, who was driving a two-ton truck loaded with beans. The pickup turned into the driveway of the R. L. Richards home (obviously to the left, or east) and Barker had slowed down, activated his turn light and 'started to turn,' when an old model Buick containing three men 'sideswiped' the left front side of his truck, knocked down the mailbox, ran across the road and across a ditch into a field, but eventually got back on the road and proceeded on south. The Richards brothers came back to see if Barker was hurt, Mrs. Richards came out of the front door and her husband told her to call the Highway Patrol; he jumped into his station wagon, backed it out, and followed the Buick. Barker and Larry Richards got the truck off the road, and could then see car lights to the south; they got into the pickup and went there; they found the old Buick and the Richards station wagon, and pulled in front of both cars. Irby and Lonnie Garrett were in the Buick, and Billy Joe Garrett was driving the station wagon or sitting in the driver's seat. As Barker and Larry started to get out, Billy Joe opened the door of the station wagon and got out with a pistol which he pointed at them; he threatened to kill them because they had seen 'the wreck,' ordered them into the back seat of the station wagon, and pushed Barker as he got in. Irby then drove the station wagon, Billy Joe the pickup and Lonnie the Buick; they all proceeded south on Highway 80 for 'approximately a half quarter of a mile' to a gravel road, on which they turned off, but they stopped 'just as we turned onto the gravel road.' Barker testified that the gravel road ran 'west,' but we take judicial notice of the official highway map (as indicated later) which shows that the only gravel road leaving Highway 80 in that vicinity runs east, and we also note the undisputed testimony that they later drove east on that road.
At this point Billy Joe came over to the station wagon which Irby had been driving, and got in the front seat, sitting 'sideways' beside Irby and holding his pistol pointed at Barker and Larry Richards in the rear; Lonnie Garrett stood at the side of the car. 'They' asked 'our names,' asked who was driving the truck and 'told us if we identified them' they would kill us; Sam Irby told Larry to give him his money which he did, one $5 bill and one $1 bill; at this time Billy Joe was displaying the pistol, as before; Lonnie said, 'Yes, get the money.' Barker showed his billfold and had nothing but change which no one seemed to want. Thereupon, the three engaged in some conversation about where they should go, but eventually all three vehicles drove east, for perhaps two or two and one-half miles, past the 'Yellow Dog School.' As of that time it was said also that Irby had a shotgun or part of a shotgun, the witness being unable to describe it accurately. There was then some shifting of drivers, and a lot of miscellaneous conversation; Larry was instructed to drive the station wagon, and they all turned south on a gravel or dirt road. At just about that time a Highway Patrol car appeared and, after the cars made the turn, it passed the station wagon and intercepted the procession. The officer had obviously been called about the accident; he arrested Lonnie, and Irby succeeded in running away on foot after driving some distance farther south. Billy Joe instructed Larry, with suitable threats, to back up and proceed westerly, which he did. The route and details are inconsequential; Billy Joe still kept the pistol prominently displayed; he finally let Larry and Barker out some miles to the southwest at a point west of Highway 61, and drove off in the station wagon, after holding 'the gun on us' until he took over the driver's seat. Irby was apprehended in East Prairie; Billy Joe in Ste. Genevieve.
As already indicated, the sole question briefed here is whether the venue was sufficiently established. We thus look to the pertinent authorities and the rules which they establish. As counsel for defendants states, venue must 'be proved because the accused, under the Sixth Amendment to the Constitution, is guaranteed the right to a public trial by an impartial jury of the state and district wherein the crime shall have been committed.' Dean v. United States (CA 8), 246 F.2d 335, 338. See also Art. 1, § 18(a), Mo.Constitution, V.A.M.S., providing for a trial by an impartial jury of the county; and § 541.030, RSMo 1959, V.A.M.S. to the same effect. But as indicated in Dean, supra, and in various other cases, venue is not an integral part of a criminal offense and need not be proven beyond a reasonable doubt or by direct evidence, but it may be inferred from all the evidence. In the following Missouri cases it was held directly that the venue might properly be found by the jury from circumstantial evidence. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Gow, 235 Mo. 307, 138 S.W. 648; State v. Ruckman, Mo., 222 S.W.2d 74; State v. Hartwell, Mo., 293 S.W.2d 313; State v. Cobb, 359 Mo. 373, 221 S.W.2d 745; State v. Haun, Mo., 324 S.W.2d 679; State v. Heissler, Mo., 324 S.W.2d 714. As stated in Haun, supra, the venue was sufficiently proved 'if the jury reasonably could have found from facts and circumstances in evidence that the alleged crime occurred in that county'; and, as stated in Heissler, supra, in a slightly different form, the evidence is sufficient if the facts and circumstances 'reasonably support the inference that the offense was committed in Greene County.' Moreover, our courts have held in several cases that on a question of venue they will take judicial notice of county lines, the locations of towns, of official highway maps and of the distances shown thereon. Heissler, supra; Haun, supra; State v. Ruckman, Mo., 222 S.W.2d 74; State v....
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