State v. Johnson, 61868.

• Decision Date: 15 October 1980
• Docket Number: No. 61868.,61868.
• Citation: 606 S.W.2d 655
• Parties: STATE of Missouri, Respondent, v. John Henry JOHNSON, Appellant.
• Court: Missouri Supreme Court

606 S.W.2d 655

STATE of Missouri, Respondent, v. John Henry JOHNSON, Appellant.

No. 61868.

Supreme Court of Missouri, Division No. 1.

October 15, 1980.

Blair Buckley, Jr., Public Defender, Caruthersville, for appellant.

Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT R. WELBORN, Commissioner.

Appeal from judgment of conviction and sentence to seven years' imprisonment for first degree robbery.

In July, 1978, at around midnight, Collis Haddock was walking along Highway 61 in New Madrid County. He had $618 in his billfold. At Howardville, he was looking for a telephone when he was accosted by six black men. One "hollered, `I know karate'" and kicked Haddock in the chest. As Haddock fell, another man, according to Haddock, took his billfold from his back pocket. Haddock's billfold was taken by two men to the front of a truck where they examined the contents of the billfold and then left. Haddock could not identify any of his attackers.

After the two men had left, the remaining four took Haddock to a local deputy sheriff and Haddock told him what had happened.

The two men who left were appellant John Henry Johnson and his brother Thurman. At John Henry's trial, the other four men present at the incident testified that John Henry took the wallet from Haddock; that John Henry and his brother examined the wallet and left, after giving Haddock another wallet, not his. They identified John Henry as the man who kicked Haddock.

The deputy went to Johnson's residence after the incident was reported but found no one. Appellant and his brother were eventually arrested in Carbondale, Illinois.

Testifying in his own behalf, John Henry admitted being present at the incident. He denied that he kicked Haddock and that he took the billfold. He said that he knew money was taken from Haddock but he couldn't say who took it. He said that when the others went to the police, he went home, "* * * got some chicken and lunch and stuff and then he and Thurman went to the bus station and left."

A jury in the New Madrid County Circuit Court found appellant guilty of robbery in the first degree and assessed a penalty of seven years' imprisonment.

On his appeal, appellant's first two points are somewhat interrelated. He contends that the evidence was insufficient to support the verdict and that the robbery instruction was erroneous because it submitted taking by putting the victim in fear of immediate injury whereas the information charged taking by force and violence to the person of the victim.

With respect to the first point, appellant's position is that there was no evidence that Haddock's billfold was surrendered because of fear. According to appellant, the evidence showed only a taking without Haddock's consent, at the most stealing.

Haddock testified that he was "scared to death." Such a state of mind coupled with a physical attack was sufficient to permit the jury to find that the taking was accomplished by placing Haddock in fear of immediate injury. State v. Houston, 451 S.W.2d 37 (Mo.1970).

Appellant also contends that, since the instruction did not submit force and violence as charged in the information, there was no finding by the jury of one essential element of the offense charged. He further contends that the instruction which submitted fear of injury rather than force and violence as charged in the information permitted the jury to convict appellant of an offense with which he was not charged.

No objection to the instructions was voiced at the trial or in the motion for new trial. Absence of objection at the trial level would justify this court's refusal to consider this claim of error. State v. Mathews, 328 S.W.2d 642, 644-6454 (Mo.1959).

Considering the assignment under the plain error rule, State v. Macone, 593 S.W.2d 619 (Mo.App.1980), provides a correct answer to appellant's complaint. In that case, robbery by force and violence was charged and the submission was of taking by placing in fear. On appeal, the variance between the information and instruction was assigned as error under the plain error rule. In disposing of the assignment, the court stated (593 S.W.2d 621):

"A variance between the information and an instruction, to be fatal and justify reversal, must be material and prejudicial to the rights of the defendant. State v. Crossman, 464 S.W.2d 36 (Mo.1971); Rules 24.11 and 26.04, V.A.M.R. Here, there was evidence of both fear of immediate injury and violence. The variance between the charge and the instruction did not prejudice the defendant. State v. Collins, 519 S.W.2d 362 (Mo.App.1975)."

Appellant asserts that he made no effort to defend against a charge of taking by placing in fear because that was not the charge. Obviously the evidence showed both force and violence and placing in fear and appellant does not show that he was prejudiced by the variance.

Appellant complains that the procedure authorized by Section 494.250, RSMo 1978, under which the sheriff selected prospective jurors, denied him the right to trial by an impartial jury, guaranteed by the Missouri Constitution, and his right to a petit jury selected from a fair cross-section of the community as required by the Sixth and Fourteenth Amendments to the Constitution of the United States.

When the case came on for trial, app...