State v. Key, 51760
| Decision Date | 13 February 1967 |
| Docket Number | No. 2,No. 51760,51760,2 |
| Citation | 411 S.W.2d 100 |
| Parties | STATE of Missouri, Respondent, v. Lewis Richard KEY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Dennis J. Quillin, Sp. Asst. Atty. Gen., Clayton, for respondent.
William Brandecker, Ronald E. Smull, Columbia, for appellant.
BARRETT, Commissioner.
Upon an indictment charging that Lewis Richard Key by means of a dangerous and deadly weapon, a pistol, held up and robbed Evelyn Wiehardt of $512.75, the property of McCutcheon Supermarket in Fayette, a jury returned a verdict of guilty and fixed his punishment at five years' imprisonment. Appellant's counsel have briefed and argued six separate assignments of error and while three of the points have to do with the giving of instructions, they relate to and may be considered with the principal claim that the court should have directed an acquittal because 'there was no substantial evidence of a conspiracy between appellant and William Thornton Harris' who, admittedly, 'had the gun on' Mrs. Wiehardt and 'asked me if I wanted to live and I told him to take the stuff.'
The state established these circumstances: On February 6, 1965, 'Corky' Quinley, the manager, and Mrs. Wiehardt, a checker, closed McCutcheon's Supermarket. It was about 9:30, 'Corky' put the day's receipts in a bag and proceeded to his parked car intending to put the bag in a night depository. But as he approached his car he saw 'Someone laying on the floorboard in the back seat' and so he walked over to Mrs. Wiehardt's car before she drove away and put the money bag in her automobile and started back to the front door of the store to call for help. Before he could get to the store door a man, he 'could tell he was colored,' had gotten out of his car and 'with his arm stretched out with his pistol in his hand' said 'Stop right there.' Instead of stopping 'Corky' ran to a nearby laundromat to call the sheriff. And as indicated, Mrs. Wiehardt said that when 'Corky' 'went off and the first thing I knew he was right on me.' The man was Harris, as a boy he had lived in Fayette, and Mrs. Wiehardt recognized him. Harris grabbed her bag and could not immediately find the store's money bag but when he pointed the gun and asked if she wanted to live she told him 'to take the stuff' and told him where it was. He got the bag and 'ran right straight for the south corner of the (store) building' and, according to both 'Corky' and Mrs. Wiehardt, in seconds, a white and green automobile 'came up Lucky Street' from the side of the store building and 'took him away' at a 'very fast' speed and they were unable to get a license number or see who or how many were in the automobile.
But officers were alerted and just outside Columbia, 26 miles from Fayette, the appellant Key, age 23, driving his green and white 1954 Chevrolet was confronted with police-car roadblocks from both front and rear. A Columbia policeman described the encounter, But when the policeman turned his spotlight on he saw someone else moving in Key's automobile. Other police officers arrived and found Jackie Harris and Larry Lewis 'lying or squatting on the floor.' Searching Harris, the officers found a loaded 22 caliber Ruger pistol in his raincoat pocket. Harris refused to give his name. Also in the back of Key's automobile the officers found an empty lady's red purse (Mrs. Wiehardt's) with some McCutcheon coupons in it and a McCutcheon money bag on the back seat. The bag contained $512.75 in currency and silver and $2422.75 in checks. One of the officers said that Key had been drinking, it was possible that he was intoxicated but the officer said, 'He wasn't incapacitated.' The Howard County sheriff arrived shortly, identified Harris and talked to Key who said that the three of them had been in Fayette and 'out in this part of town called New Addition' but he said that he had been asleep and that Harris had driven his Chevrolet to Columbia. Key had no knowledge of the money bag or the pistol and did not know that there had been a robbery in Fayette.
Key, Harris and Lewis all testified. They had been drinking during the afternoon in Jefferson City and Columbia and Lewis solicited Key to take Harris to Fayette to see Harris' sick baby. Harris bought gasoline just outside Columbia for Key's 1954 green and white Chevrolet and Key and Lewis bought more gin and wine and Key 'took them over to Fayette.' Harris' wife lived in Columbia, his mother in Fayette but when they arrived instead of going to see the sick baby went out to 'New Addition' and 'went in the joint' where they drank beer and danced. Lewis returned to the automobile and was asleep in the back seat and Keys says that he went out, 'laid in the front seat' and went to sleep. In the meantime Key had told Harris that he could drive the automobile to see the baby. In any event Key and Lewis went to sleep in the automobile and did not wake up until just outside Columbia. They saw no gun, had not talked about a robbery and didn't know that Harris was thinking about it. Harris, serving eighteen years for robbery, was a state's witness, most questions he refused to answer for the reason 'it might incriminate me.' He said that he rode in Key's automobile to Columbia and that there was no discussion with Key about robbing the supermarket.
It is in this background that Key insists that a verdict should have been directed because, he says, there was no evidence of a conspiracy between him and Harris and that the state is bound by Harris' testimony that there was no discussion of a robbery. And in this connection, since there was no proof, it was error to instruct on the subject of conspiracy and other instructions permitted a finding of guilt without requiring the jury to find a conspiracy. And still further in this connection it is claimed that the court erred in giving Instruction 11 on circumstantial evidence, particularly in that it conflicts with other instructions and only required that the circumstantial facts 'should' be consistent rather than that they 'must' be found consistent. Thus in one way and another the appellant does not challenge the sufficiency of the evidence to the substantive offense of robbery with a dangerous and deadly weapon, he challenges proof of his connection with the offense for lack of sufficiently probative evidence and proof of a conspiracy.
In this connection the burglary and liquor cases relied on by the appellant are helpful only insofar as they state and illustrate the general rules relating to circumstantial evidence and require the proof to show more than mere opportunity to commit the offense and create more than a suspicion of actual connection and guilt. State v. Rogers, Mo., 380 S.W.2d 398. But even in this connection, as the first Whitaker case (State v. Whitaker, Mo., 275 S.W.2d 316) illustrates, a conspiracy as with any other fact may be shown by circumstantial evidence. And here, unlike in the second Whitaker case (State v. Whitaker, Mo., 275 S.W.2d 322), there was deception on Key's part as to the presence of Lewis and Harris, the admitted robber in his, Key's, automobile. And unlike State v. Watson, Mo., 350 S.W.2d 763, while it is 26 miles from Fayette to the outskirts of Columbia, Key was in his own automobile with Harris and Lewis and the money bag and the inferences are stronger than his...
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