State v. Lomack, s. 39516

• Decision Date: 21 August 1979
• Docket Number: Nos. 39516,39550,s. 39516
• Citation: 586 S.W.2d 90
• Parties: STATE of Missouri, Respondent, v. Carl LOMACK and Darryl Lockett, Appellants.
• Court: Missouri Court of Appeals

Page 90

586 S.W.2d 90

STATE of Missouri, Respondent, v. Carl LOMACK and Darryl Lockett, Appellants.

Nos. 39516, 39550.

Missouri Court of Appeals, Eastern District, Division One.

Aug. 21, 1979.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., David T. Weir, St. Louis, for respondent.

Fredman, Watkins & Fredman, Bruntrager & Bruntrager, Raymond A. Bruntrager, Jr., St. Louis, for appellant.

SMITH, Judge.

Defendants, jointly charged with robbery and jointly tried, appeal their convictions and sentences of five years by the jury.

On November 2, 1976, in the early morning Raymond Bridges and defendants and their friend Kim Julian were customers in a White Castle restaurant at Natural Bridge and Kingshighway in the City of St. Louis. Upon leaving the restaurant Bridges was assaulted by defendant Lomack near the White Castle building. The attack was with Lomack's hands. After falling to the ground, Bridges was kicked by Lockett and Julian. Bridges stated that Lomack and Lockett took from him his watch and ring. The assault was witnessed by a police officer across the street, but the officer did not observe anything taken from Bridges. The defendants and Julian then entered Lomack's car and left the White Castle parking lot. They were pulled over by the police officer about a block and one-half from the White Castle, and then the police officer and the three suspects returned to the White Castle in their cars. Bridges immediately identified them and stated that they had stolen his watch and ring. All three suspects were thoroughly searched, their car was searched and the streets where they had driven were searched. No watch or ring was found. Bridges had three prior felony convictions for burglary or stealing.

Defendants and Julian testified for the defense. All admitted that an assault and beating had taken place but denied any kicking. All attributed the beating to Lomack and said it occurred because Bridges, whose car had been stolen while he was in the White Castle, was trying to get into Lomack's car with them. Defendants testified that Bridges had suggested that he and defendants have a homosexual liaison. All three defense witnesses denied that anything was taken from Bridges.

On appeal defendants raise six claims of error, only three of which it is necessary to discuss.

The first is a claim that the trial court committed "plain error" by failing to instruct on the offense of assault in some form. Defendants contend that assault is a lesser included offense of robbery and that the evidence required an instruction thereon. The matter was not raised at trial nor in the motion for new trial hence the plain error claim. Rule 27.20. In State v. Amsden, 299 S.W.2d 498 (Mo.1957) the following definition of what constitutes a lesser included offense is given:

"The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater." l.c. 504.

Defendants were charged with taking the property by putting Bridges "in fear of an immediate injury to his person, and then and there feloniously and by force and Violence to the person of Raymond Bridges . . . ." (Emphasis supplied) The verdict-directing instruction hypothesized only "violence to his person" as the means of taking.

Defendants contend that they were entitled to an instruction on assault with intent to kill with malice aforethought (Sec. 559.180 R.S.Mo.1969) or assault without malice aforethought (Sec. 559.190 R.S.Mo.1969) or common assault (Sec. 559.220 R.S.Mo.1969) or some combination thereof.

Sec. 559.180 is a specific intent crime requiring that the assault be made with an intent to kill, maim, ravish, rob, burglarize, commit some other felony, or in resisting execution of legal process. Sec. 559.190 is also a specific intent crime requiring an intent to kill, do great bodily harm, rob, rape, burglarize or commit another felony. Turning to the Amsden definition set out above, it is clear that defendants were not specifically or by implication charged with any intent required by these two statutes except an intent to rob or steal from the person. The intent necessary to support an assault conviction under these two statutes (except an intent to rob or steal) introduces an element not charged in the information against the defendants. They are not therefore, lesser included offenses under the Amsden definition.

The elements of intent to rob or steal from the person are included within the charge of robbery. ¹ But there is no evidentiary support that any such unconsummated intent existed. Both defendants and Julian denied any attempt or intent to rob or steal. The only evidence was that either the robbery was consummated or that it was not even attempted or contemplated. There was no error in failing to instruct on the two higher grades...