State v. Johnstone, 47366

• Citation: 335 S.W.2d 199
• Decision Date: 14 March 1960
• Docket Number: No. 2,No. 47366,47366,2
• Parties: STATE of Missouri, Respondent, v. Charles W. JOHNSTONE, Appellant
• Court: United States State Supreme Court of Missouri

Page 199

335 S.W.2d 199

STATE of Missouri, Respondent, v. Charles W. JOHNSTONE, Appellant.

No. 47366.

Supreme Court of Missouri, Division No. 2.

March 14, 1960 Motion to Transfer to Court en Banc Denied May 9, 1960.

Charles N. Johnstone, pro se.

John M. Dalton, Atty. Gen., Richard W. Dahms, Special Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Charles Johnstone appeals from a judgment imposing a sentence of life imprisonment, in accord with the verdict of the jury, upon conviction under the Habitual Criminal Act of robbery in the first degree by means of a dangerous and deadly weapon. The main issues presented in defendant's motion for new trial embrace attacks against the information, the admissibility and sufficiency of the evidence, separation of the jury, the presence of guards, and the conduct of his court-appointed counsel.

Miss Martha Beauchamp worked in a cashier's cage on the fifth floor of Peck's Department Store, Kansas City, Jackson County, Missouri. About 12:30 or 12:45 p.m., August 15, 1958, a man, later established to be defendant, Charles Johnstone, came up to the counter between her and the adjoining cashier's cage window. She asked him if she could help him. He had a brown zipper brief case and a short blue barrel automatic gun. He "pulled a gun on" Miss Beauchamp and said: "Yes, you can. Give me all the tens and twenties that you have." He had the gun "down like," concealed from people nearby by his brief case and a machine on the counter. He said: "I mean business." He had his brief case open and told her to put the money in the brief case. She took all the tens and twenties out of her cashier's drawer and laid the money at the edge of the brief case. The store has a warning device, and Miss Beauchamp signaled for help as she opened the drawer. Joe Quick, in the office about 20 to 25 feet from the cashier's cage, heard the signal. Defendant told Miss Beauchamp that was not enough and for her to give him the tens and twenties out of the other girl's cashier's drawer. Miss Beauchamp did this. Defendant again said that wasn't enough, and she gave him some ones. She gave him the money because "he pulled a gun on me." Defendant then ordered Miss Beauchamp to turn around and walk back into a little room at the rear of the cashier's cage. Defendant was closing his brief case at the counter as she turned around to comply with his directions.

Joe Quick walked toward the cashier's cage and, when about 10 feet away, saw defendant holding a gun on Miss Beauchamp and committing the robbery. He told one of the girls on the floor to call the police and walked out on the selling floor. The robbery took three or four minutes.

Defendant went to the elevator. Mr. Ouick followed. When the elevator arrived, they both got on, rode to the first floor, and got off. Defendant walked out of the store, turned south on Main toward 12th Street, with Mr. Quick following about 30 to 35 feet back. Defendant stopped at the Paramount Theater, purchased a ticket and went into the theater. Mr. Quick told the ticket seller he had just witnessed an armed robbery, had followed the man to the theater, and to call the police. The ticket seller hesitated. Mr. Quick saw two motorcycle officers at 12th and Main. He ran to them, told them what had happened, and the three went to the theater. Mr. Quick went into the theater while the officers waited in the lobby. He did not find defendant. Officers Elliott W. Harris and Ralph B. Stewart preceded Mr. Quick downstairs to the men's rest room. As Officer Harris entered the rest room, a man standing across the room near a telephone booth pulled a gun out of his shirt and fired in the direction of the officers. Officer Stewart, right behind Officer Harris, shot defendant, causing defendant to fall and his gun to fall to the floor about six feet from him.

Mr. Quick testified defendant carried a brown zipper brief case and was wearing a light straw hat, a brown sport coat, and gray trousers. The officers took possession of defendant's hat, brief case and gun. Detective Delbert Cull recovered $2,035 from the left hand pocket of defendant's brown coat.

Defendant had been shot in the upper right thigh, and was taken by ambulance to a hospital within a few minutes.

Defendant, in a conversation with Detective Cull, stated he lived in Nebraska, had been working in Louisiana, came to Kansas City "to pull a holdup," and that he had committed the robbery at Peck's.

At the trial defendant was identified by Miss Beauchamp, Mr. Quick, and Officers Harris, Stewart and Cull.

Defendant prepared and filed a motion for new trial. On motion of his counsel, the trial court considered defendant's motion incorporated within his counsel's motion for new trial.

Defendant contends his motion for a directed verdict of acquittal should have been sustained because there was a material variance between the charge and the proof in that there was no proof sustaining the allegation that the robbery was committed "by force and violence" to the person of Martha L. Beauchamp.

Robbery in the first degree may be perpetrated in different ways; for instance, by violence to the person or by putting the person robbed in fear of some immediate injury to his person (Sec. 560.120), and its commission by means of a dangerous and deadly weapon authorizes a more severe punishment (Sec. 560.135). (Statutory references are to RSMo 1949 and V.A.M.S.)

The information charged defendant with two prior felony convictions, imprisonments and discharges upon pardon or compliance with the sentence imposed (Secs. 556.280, 556.290); and, following the language of the statute, charged that thereafter, on August 15, 1958, defendant robbed Martha L. Beauchamp by force and violence to the person and by putting her in fear of an immediate injury to her person.

Where a statute denounces but one offense which may be perpetrated by different nonrepugnant acts, as robbery, the commission of the offense by the different acts may be charged in a single count, the conjunctive "and" being substituted in the charge for the disjunctive "or" in the statute; and proof of the consummation of the offense by any of the acts by which it may be committed will sustain the charge. State v. Craft, 299 Mo. 332, 253 S.W. 224, 227; State v. Eddy, Mo., 199 S.W. 186[1-3]; State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 203; State v. Williams, Mo., 183 S.W. 308[1, 2]; 42 C.J.S. Indictments and Informations Sec. 251. In such circumstances no fatal variance arises from a failure to prove all of the several ways in which the offense is charged. Cases supra. In holding an information charging robbery by two separate methods in the conjunctive not defective or duplicitous, State v. Craft, Mo., 23 S.W.2d 183, 185, had dictum that such pleading puts 'the burden on the state to prove both methods as alleged.' This dictum is not supported by the case there stressed (see State v. Flynn, 258 Mo. 211, 223, 167 S.W. 516, 519, where the robbery was committed by violence and by putting in fear) or the cases cited, and should not be followed. Alleging the ownership of the property taken in a clerk, servant or other bailee in lawful possession under the owner has been held sufficient a against a robber. State v. Montgomery, 181 Mo. 19, 79 S.W. 693, 694 et seq., 67 L.R.A. 343; State v. Carroll, 214 Mo. 392, 113 S.W. 1051, 1053(2), 21 L.R.A.,N.S., 311; McCarthy v. Eidson, Banc, Mo., 262 S.W.2d 52, 53, 54.

The information alleged that defendant's "Christian name in full is unknown to" the prosecuting attorney. The caption of the information named defendant as Charles W. Johnstone (see Kirk v. State, 6 Mo. 469) and in the body of the information his name also appeared as Charles Johnstone. There is no merit in defendant's complaint based upon his correct name being Charles Newcomb Johnstone. An error in the middle name or initial may be disregarded. State v. Martin, 10 Mo. *391; State v. Black, 12 Mo.App. 531, 534; State v. Hands, Mo., 260 S.W.2d 14.

Defendant makes two complaints of the habitual criminal charge in the information. Summarized, they are to the effect this charge placed him in double jeopardy and deprived him of a fair and impartial trial, which, he states, is not possible when "a sentence is mandatory merely upon proof of prior conviction." There is no merit in either complaint. The Habitual Criminal Act does not make a sentence mandatory merely upon proof of a prior conviction. Many cases hold a charge under the act does not place the accused in double jeopardy. See State v. O'Brien, Mo., 252 S.W.2d 357, 360; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 330. The fairness of the act is a question of legislative policy beyond this court's jurisdiction. State v. Humphries, 350 Mo. 938, 169 S.W.2d 350, 352.

The verdict found defendant guilty of robbery, first degree, as charged; that defendant has been convicted of two prior felonies, and assessed his punishment at imprisonment in the state penitentiary for the remainder of his natural life. This is sufficient under the first degree robbery (Secs. 560.120, 560.135) and the habitual criminal (Sec. 556.280) statutes on the record before us. State v. Jonas, Mo., 260 S.W.2d 3, 6; State v. Kelly, Mo., 258 S.W.2d 611; State v. Ash, Mo., 286 S.W.2d 808, and cases cited.

The punishment of life imprisonment was mandatory under the statutes if the jury believed the evidence on behalf of the State; and the new trial assignment that the verdict was the result of passion and prejudice as evidenced by the sentence of life imprisonment is without merit. State v. Copeland, 335 Mo. 140, 71 S.W.2d 746[10, 11]; State v. Ortell, Mo., 50 S.W.2d 1037; State v. Macon, Mo., 287 S.W. 775.

Defendant, in separate assignments, contends prejudicial error occurred in allowing the State to exhibit in the presence of the jury a brief case and a gun allegedly used by the defendant in committing the robbery. There is no showing...