State v. Hawkins

• Decision Date: 09 October 1967
• Docket Number: No. 51078,51078
• Citation: 418 S.W.2d 921
• Parties: STATE of Missouri, Respondent, v. Clinton Edward HAWKINS, Appellant.
• Court: Missouri Supreme Court

Page 921

418 S.W.2d 921

STATE of Missouri, Respondent, v. Clinton Edward HAWKINS, Appellant.

No. 51078.

Supreme Court of Missouri, En Banc.

Oct. 9, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, David Dempsey, Special Asst. Atty. Gen., Clayton, for respondent.

H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hilsboro, for appellant.

EAGER, Judge.

Defendant was charged by amended information as an habitual offender, § 556.280, ¹ with robbery in the first degree by means of a dangerous and deadly weapon. Section 560.120. A jury found him The case has pursued an unusually lengthy course since sentence was imposed. Additional time was granted for filing the transcript; thereafter the case was submitted and an opinion was written in Division Two of this Court. Upon a dissent it was transferred to the Court In Banc and argued there twice. Prior to the last argument we ordered that counsel be appointed to represent defendant upon the appeal, and a continuance was granted upon his rquest. Thus, highly competent counsel briefed and argued the case for the appellant prior to the last submission. We consider only the questions so presented. The points raised involve the evidence to such an extent that we shall need to state the facts in some detail.

guilty as charged and, after an unavailing motion for new trial, he was sentenced by the court to confinement in the custody of the Department of Corrections for a period of ninety-nine years. Section 560.135. He appeals.

On the morning of February 28, 1964, a man driving an automobile and wearing a stocking mask approached the Farmers Bank of Antonia in Jefferson County, and stopped in front of it. Shirley Recar, a teller, was looking out the window from her teller's counter at the front of the bank, saw him and screamed 'here comes a man wearing a mask, someone lock the door'; thereupon she ran to the rest room in the rear and appeared no more in the sequence of events. Wilma Otto, assistant cashier, was at her window or counter, presumably the next one; she picked up her purse and took out some keys; the masked man walked in with a revolver in one hand and a brown satchel in the other. He came directly to her window, laid the gun on her counter and said 'move back'; Wilma took one step back and the man said 'move back farther'; she did. The man then climbed over the counter and, with the gun in his hand, said to her 'move back farther or I'll blow your head off'; apparently she did so, and the man immediately began taking the money out of the cash drawer next to hers, putting it in his satchel; at that time he told her to go to the back office which she did, since he was pointing the gun at her; at this time the telephone rang and he told her not to answer it, but she came back into the bank proper and then saw that he was still taking money from the 'cash drawers.' Wilma had tripped the burglar alarm and expected one or more of the business neighbors to come; at this time she saw Mr. Freedman (one of such neighbors) outside and yelled to him 'run Mr. Freedman, it's a holdup.' At that time the robber left the bank and was intercepted by Mr. Freedman who, with some rather delayed help, subdued and captured him. One shot was fired from the revolver and it penetrated the bank window, shattering glass on Wilma. Five loaded shells remained in the gun. The money was recovered, $5,712, the precise amount missing from the cash drawers. At the trial defendant was definitely identified as the robber by certain of those who saw him after his mask was removed.

Granville Cook cashier of the bank, was in his office about 25 feet from the door when the robber entered; he saw the man enter and tripped the burglar alarm in his office. He could not and did not (from his position) see the man actually taking the money from the cash drawers, and he apparently did not leave his office until the man left. Various exhibits were identified at the trial, but they are not material to our discussion.

The defendant did not testify; the evidence in his behalf consisted only of the testimony of his mother and wife to the effect that he had suffered two head injuries (one when a child) and that there were periods when he would seem dazed and uncommunicative for days at a time; also, that he had bad headaches and at times did not have any recollection of where he had been. A psychiatrist from the Farmington State Hospital, Dr. Doronila, where defendant had been kept for more than a month for examination, testified The points briefed and argued here all concern Instruction No. S--1, which, in its pertinent parts, was as follows: 'You are instructed that if, upon consideration of all the facts in the case, in the light of the court's instructions, you believe and find from the evidence, to a moral certainty and beyond a reasonable doubt, that at the County of Jefferson and State of Missouri, on the 28th day of February, A.D. 1964, the defendant, Clinton Edward Hawkins, did feloniously and wilfully, by means of a dangerous and deadly weapon, towit: a revolver, by force and violence or by threats of force and violence to the person of Granville Cook, Wilma Otto, and others, employees, clerks, agents and officers of the Farmers Bank of Antonia, if you so find, and against their will, if you so find, and by putting them, or any of them, in fear of any immediate injury to their person, did rob, steal, take and carry away from their presence, person and possession, Five Thousand Seven Hundred Twelve Dollars ($5,712.00) lawful money of the United States, or any part of said sum of money, * * *.

that all of defendant's reactions were within normal limits, that he had no psychosis and, in substance, that no mental disease or defect was found. The jury was fully instructed on that subject pursuant to Section 552.030.

'The word 'robbery', as used in these Instructions, means the felonious taking of the money or property of another, of any value whatever, from a person, or in his or her presence, or from his or her possession, and against his or her will, by violence to his or her person, or by putting him or her in fear of an immediate injury to his or her person.'

We shall note first certain well established principles as fixed by our decisions, and then consider appellant's points. Section 560.120 proscribes one offense, i.e., first degree robbery, which may be charged or proven as having been accomplished in either of two ways,--namely, by violence to the person or by putting him or her in fear of some immediate injury. The State need not prove both. State v. Van Horn, Mo., 288 S.W.2d 919; State v. Thompson, Mo., 299 S.W.2d 468; State v. Pope, Mo., 364 S.W.2d 564; State v. Johnstone, Mo., 335 S.W.2d 199; State v. Reeder, Mo., 394 S.W.2d 355; State v. Burns, Mo., 280 S.W.2d 119. And it has been held that where both alternatives are submitted in the conjunctive with evidence to support only one, there is no error, for the State has assumed a greater burden than necessary. See the discussion in State v. Neal, Mo., 416 S.W.2d 120, opinion filed June 12, 1967; and see also State v. Burns, supra; State v. Cusumano, Mo., 372 S.W.2d 860. We are not concerned with that proposition here and need not rule on it, for we hold that on this record there was substantial evidence of both violence and of putting in fear. Except in Neal, supra, the Missouri courts do not seem to have held clearly that conduct such as we have here constitutes 'violence.' We so hold now. The following authorities tend to support that holding: State v. Rose, Mo., 325 S.W.2d 485; State v. Hall, Mo., 7 S.W.2d 1001; State v. Broderick, 59 Mo. 318; State v. Eddy, Mo., 199 S.W. 186; 46 Am.Jur., Robbery, §§ 14--16, pp. 145--147. Even an assault may be committed without a striking or touching. Eddy, supra. According to accepted definitions, 'violence' may consist of violent, menacing, turbulent, and threatening action or procedure. (Webster's International Dictionary, 3rd Ed.), and particularly so if the actor possesses the obvious means of inflicting injury or death. Here, the flourishing and pointing of the gun, climbing over the counter, ordering the assistant cashier back (twice) and threatening to blow her head off, constituted substantial and submissible evidence of violence under § 560.120. The decision in State v. Vandament, Mo., 299 S.W.2d 532, was based on acts held to have occurred subsequent to the taking and to and an escape, and the facts are therefore different. The purse snatching cases, as indicated in State v The specific complaints made of Instruction S--1 are: (A) that it permitted the jury to find violence or threats of violence to persons not named; (B) that it permitted consideration of such as offered to persons not employees of the bank and after defendant had obtained possession of the money and was leaving; (C) that 'threats of violence' are not a proper element of the offense of robbery, although perhaps evidence of intimidation; that the term should not have been used in the disjunctive with 'violence,' and as used with the 'loose references' to 'others,' it was prejudicially erroneous; (D) that the submission of 'putting in fear' as to different 'victims' in the disjunctive allowed the jury to speculate and the submission was not supported by the evidence.

White, 326 Mo. 1000, 34 S.W.2d 79, seem to be based upon the theory that the violence is not used to overpower the person, but merely to get the property. In any event, we do not regard them as binding or even persuasive here.

Points A and B may be considered as one. What counsel seems to suggest is that the language of the instruction permitted the jury to consider the scuffle between defendant and Mr. Freedman outside the bank as a part of the violence or threats upon which a finding of guilt might be based. It has been held that evidence of violence or intimidation used in effecting an escape after a robber had obtained possession of the...