State v. Hayes

• Court: Missouri Supreme Court
• Writing for the Court: FINCH
• Citation: State v. Hayes, 518 S.W.2d 40 (Mo. 1975)
• Decision Date: 13 January 1975
• Docket Number: No. 58626,58626
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Elmer Richard HAYES, Defendant-Appellant.

Page 40

518 S.W.2d 40

STATE of Missouri, Plaintiff-Respondent, v. Elmer Richard HAYES, Defendant-Appellant.

No. 58626.

Supreme Court of Missouri, En Banc.

Jan. 13, 1975.

John C. Danforth, Atty. Gen., Neil MacFarlane, David Robards, Asst. Attys. Gen., Jefferson City, for respondent.

G. William Weier, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.

FINCH, Judge.

This case, written on recent reassignment, involves a defendant who was convicted on two counts, each of which charged him with robbery in the first degree by means of a dangerous and deadly weapon. After being sentenced to imprisonment for 25 years on each count, the sentences to run consecutively, he appealed to the Missouri Court of Appeals, St. Louis District, which affirmed. Application to transfer pursuant to Art. V, § 10, Mo.Const., V.A.M.S., was sustained and we now decide the case as though received on direct appeal. In so doing, we utilize without quotation marks some portions of the opinion of Judge Simeone in the Court of Appeals. We affirm on both counts.

Defendant, with another inmate, Lawson, broke out of the Washington County jail on January 16, 1972. Deputy Sheriff McLeod was forced into an upstairs cell and locked in. Defendant then located a pistol, returned to the cell where McLeod had been placed, and pointing the gun at him, said, 'Give me the keys to your car or I am going to kill you.' McLeod turned over his keys. Defendant again locked the deputy in the cell and departed. From that point McLeod could not see his automobile, but immediately thereafter he heard the sound of a car being started. The sound came from the place where his car was parked at the side of the jail. When McLeod was released from the cell, his Chevrolet automobile was gone.

Later in the day defendant and Lawson drove into the driveway of a Mrs. Russell, also in Washington County. Mrs. Russell heard the car drive in and she came out of her house. Appellant came up to her and asked if her husband was at home. When she responded in the negative, defendant pointed a gun at her and said, 'I got to have your car keys.' Mrs. Russell responded that she would bring them to him. Defendant rejected that idea, put his hand on her shoulder and guided her inside the house. Mrs. Russell found her keys and handed them to defendant. He then pulled the wires from her phone and told her he would kill her if she contacted the sheriff. After defendant left the house, Mrs. Russell locked the door and then from the window saw defendant back her Dodge automobile out of the garage. Lawson then got in the car and they drove off, abandoning the McLeod Chevrolet. A short time later defendant and Lawson were apprehended while driving the Russell automobile.

Defendant's brief on appeal asserts several alleged trial errors as a basis for reversal of his conviction. However, as a prelude to those questions, his brief raises an issue as to submissibility of Count I by suggesting that the evidence was insufficient to show that McLeod's automobile was taken in his presence.

The crime of robbery first degree is the felonious taking of 'property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person.' Sec. 560.120. ¹ This statute has been interpreted with reference to what constitutes 'in his presence.' In State v. Kennedy, 154 Mo. 268, 55 S.W. 293 (1900), this court sustained a train robbery conviction of defendants who forced an express agent out of a train car moved the car a quarter of a mile and then opened a safe and took $1000. The court held that the money was taken in the presence of the agent, saying, 55 S.W. l.c. 298:

'* * * In a word, it was a continuous series of acts, all contributing to, and culminating in, the complete crime of robbery, and, in contemplation of law, it was both a taking by violence and force and in the presence of the agent. Greenleaf lays it down that it is sufficient if it be proved that the taking by the robber was actually begun in the presence of the party robbed, though it were completed in his absence. 3 Greenl. Ev. § 228; Merriman v. Hundred of Chippenham, 2 East, P.C. 709; 1 Russ. Crimes, p. 876; 2 Russ. Crimes (Eng.Ed.) p. 91.'

Other decisions of this court are in accord. For example, in State v. Williams, 183 S.W. 308 (Mo.1916), a station agent was shot and while lying semi-conscious on the floor could hear the rifling of a money drawer in an adjoining room. A conviction of robbery was affirmed on the theory that the taking was in the presence of the station agent. Likewise, in State v. Gaitan, 442 S.W.2d 530 (Mo.1969), the court upheld a conviction of robbery in the presence of the victims when defendant ordered them out of their car at gunpoint and ordered them to run across a field. As they ran, they heard a door slam. They looked back and saw the car leaving the parking lot where they had been ejected.

We conclude that a submissible case was made. Defendant, by threats and use of a gun, placed the car owner in a jail cell, demanded and took his car keys, and then went from the jail to his car which was parked outside and drove it off. Under the previous decisions cited, this constituted a robbery of McLeod wherein his automobile was taken in his presence.

Defendant's first two assignments on appeal relate to Instruction No. 2, the verdict directing instruction, which was as follows:

'If you find and believe from the evidence beyond a reasonable doubt:

'First, that on January 16, 1972, in the County of Washington, State of Missouri, Glen McLeod was in the lawful possession and custody of a 1961 Chevrolet automobile, and

'Second, that at that time and place the defendant took the property from Glen McLeod against his will by violence to his person, and

'Third, that the defendant took the property with the intent to permanently deprive Glen McLeod of his right to it and to convert it to his own use,

then you will find the defendant guilty of robbery in the first degree in Count One of the Information.

'However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

'If you find and believe from the evidence beyond a reasonable doubt that the defendant committed a robbery in the first degree, as submitted in this Instruction, and that beyond a reasonable doubt he did so by means of a dangerous and deadly weapon, then you will find the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, and in your verdict so state.

'If you find and believe from the evidence beyond a reasonable doubt:

'First, that on January 16, 1972, in the County of Washington, State of Missouri, Marie Russell owned a 1970 Dodge automobile, and

'Second, that at that time and place the defendant took the property from Marie Russell against her will by violence to her person, and 'Third, that the defendant took the property with the intent to permanently deprive Marie Russell of her right to it and to convert it to his own use,

then you will find the defendant guilty of robbery in the first degree in Count Two of the Information.

'However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

'If you find and believe from the evidence beyond a reasonable doubt that the defendant committed a robbery in the first degree, as submitted in this Instruction, and that beyond a reasonable doubt he did so by means of a dangerous and deadly weapon, then you will find the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, and in your verdict so state.'

Actually, defendant has not preserved for review any objections to Instruction No. 2. No questions as to its propriety were asserted when the instruction was given. Instruction No. 2 is not referred to in defendant's motion for new trial. The first mention of asserted deficiencies in this instruction appear in defendant's brief on appeal wherein the claims are asserted as plain error under Rule 27.20(c) V.A.M.R. We proceed to examine those contentions.

It is claimed that Instruction No. 2 was erroneous in that it did not require a finding as to Count I that the taking was 'in the presence of' Deputy McLeod and as to Count II that the taking was 'in the presence of' Marie Russell. Instead, defendant claims that by submitting the issue of whether defendant took the automobiles 'from' the victims the court was asking for a finding under the evidence as to whether there was a taking from the victims' persons when obviously the automobiles were not taken from their persons.

We conclude that the word 'from', as used in Instruction No. 2, was not limited to and did not require a finding of a taking from the person of the victims. While the statute (§ 560.120) uses both phrases 'from his person' and 'in his presence' in describing the crime of robbery by taking property from a victim 'against his will, by violence to his person, or by putting him in fear of some immediate injury to his person,' those phrases are not repugnant or mutually exclusive. State v. Davis, 482 S.W.2d 486, 488 (Mo.1972). Earlier decisions which demonstrate that the phrases are substitutionary or equivalent rather than mutually exclusive, and that a taking in the presence would support a finding of a taking from the person include State v. Craft, 299 Mo. 332, 253 S.W. 224 (1923), State v. Lamb, 242 Mo. 398, 146 S.W. 1169 (1912), and State v. Eddy, 199 S.W. 186 (Mo.1917). ²

In Craft this court said, 253 S.W. l.c. 227:

'* * * The essential allegations necessary to charge robbery in the first degree are the same in the statute as at common law. Under the latter the words 'in his presence' are by judicial construction held to be substitutionary...