State v. Lowery
| Decision Date | 24 March 1978 |
| Docket Number | No. 10281,10281 |
| Citation | 565 S.W.2d 680 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Carl LOWERY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Charles E. Buchanan, Asst. Public Defender, Joplin, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before HOGAN, P. J., and MOORE and NORTHERN, Special Judges.
Defendant Carl Lowery was charged in the Circuit Court of Jasper County with first degree robbery under § 560.120, RSMo 1969, in that on or about September 2, 1975, he "did wilfully, unlawfully and feloniously take a .357 Magnum Smith & Wesson pistol and Twenty-Eight Dollars, lawful money of the United States from the person of Paul M. James in his presence and against his will by putting him in fear of some immediate injury to the person of the said Paul M. James." Defendant was convicted of the charge by a jury and sentenced to life imprisonment under the Second Offender Act, § 556.280, RSMo 1969.
On September 2, 1975, seven prisoners who had received treatment at a medical clinic in Webb City were being returned to the Jasper County Jail in a van driven by Deputy Sheriff Paul James. Deputy Sheriff Vernon Elder was unarmed and was riding in the van with the prisoners. Among the prisoners in the van were the defendant Lowery and one David Russell. Defendant and Russell were sitting on a bench-like seat directly behind Deputy James, with Russell seated closer to James who was carrying a .357 Magnum revolver in a waist holster. The van slowed to stop at the intersection of Highways HH and 71. At that moment defendant and Russell stood up simultaneously and turned toward Deputy James. Russell unsnapped the holster on James' hip and removed the revolver. Deputy Elder jumped Lowery but in just a few seconds Russell shoved the revolver in his stomach and ordered Deputy Elder to leave Lowery alone. Deputy Elder described the incident as happening fast and as Russell pulled the revolver from the holster, Deputy James brought his right arm back to try to grab it but Russell had already taken the revolver out. Deputy James fell out of his seat "pawing for the gun." Deputy James struggled or tried to wrestle with Russell for a short period and wound up face down on the van in the back. The keys were removed from the ignition and the handcuffs were removed from the prisoners. Deputy James was handcuffed with his arms behind his back. Defendant acquired the revolver from Russell and Russell became the driver of the van. Later defendant pointed the revolver at the head of Deputy James and said, "How do you like that, you son-of-a-bitch"?
Russell drove the van through Joplin to a vacant house in Jasper County near the Kansas line. Both deputies were taken into the house. Deputy James was placed in a hall closet. Deputy Elder was handcuffed to a bathroom sink and the door was closed. Defendant and Russell took Deputy James from the closet and forced him to face the wall. James' wallet containing $28.00 was removed from his back pocket. Only defendant and Russell were near James when his wallet and money were taken. James stated that he could not see who had done the taking but that the defendant had the .357 Magnum at that time and was pointing it at him. James stated he was in fear of harm at the time his wallet was taken. James was ordered back into the closet and the door was shut; the defendant and Russell escaped in the van.
Defendant testified that he decided to join in the escape only after Russell grabbed the gun; that he took possession of the gun from Russell to keep someone from getting hurt; that neither he nor Russell took the wallet from James and that another prisoner did. Defendant denied making the threatening statement to James.
The issues on appeal involve Instruction No. 6 (based on MAI-CR Nos. 2.12 and 7.60). The instruction is as follows:
If you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty of robbery in the first degree.
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.
Defendant raises two issues on appeal. First, he contends that the court erred in submitting Instruction No. 6 because it erroneously states the law by directing the jury with respect to robberies of two different items of property that occurred at two separate times.
Paragraph First of Instruction No. 6 required the jury to find, in order to convict, that a .357 Magnum revolver and $28.00 were in possession of Deputy James on September 2, 1975. Paragraph Second required the jury to find that Russell had taken the property from James by violence and by putting him in fear. Paragraph Third required a finding that Russell took the property with intent to permanently deprive James of it. Paragraph Fourth required a finding that defendant acted alone or knowingly and with common purpose together with Russell in the conduct referred to in the above paragraphs (First, Second and Third). Defendant says that since the taking of the $28.00 occurred later in the day and at a different time and place than the taking of the .357 Magnum, the instruction erroneously stated the law and allowed the jury to match some of the required elements of the offense from the first taking of property with other and different required elements of the offense from the second taking of property, thus rendering the jury able to return a guilty verdict without unanimity with respect to each taking.
The State contends Instruction No. 6 placed a heavier burden of proof on the State than the law required. The Instruction did not allow the jury to convict defendant by finding that defendant had taken either the revolver or the $28.00 from Paul M. James, but required the jury to find, to render a guilty verdict, that defendant had taken the revolver and $28.00 from James. Therefore, defendant benefited from the instruction and may not complain of its submission.
Defendant cites and relies heavily on State v. Washington, 242 Mo. 401, 146 S.W. 1164 (1912). There the indictment charged that defendant did "set up and keep divers gaming tables and gambling devices, to-wit, one crap table, commonly so called, and one poker table, commonly so called . . ." Evidence at the trial tended to prove each act and defendant was convicted. The instruction in question directed the jury to find defendant guilty if it found that defendant did "set up and keep certain gaming tables and gambling devices, to-wit, a crap table . . . and a poker table . . . or either of them . . ." (Emphasis added). Washington, supra, at 1166. The Court held that submission of the instruction was reversible error because some of the jurors may have believed the testimony in support of the charge as to one of the gaming devices and disbelieved the testimony as to the other, while the remaining members of the jury may have found and believed conversely. The court declared that "(I)f the instruction had submitted the case upon the theory of guilt as to both gambling devices (no motions to quash or elect having been filed) . . . the conviction could have been sustained." Washington, supra, at 1166. Instruction No. 6 in the present appeal required that guilt be predicated on both takings.
Defendant also cites a companion case to Washington (State v. Jackson, 242 Mo. 410, 146 S.W. 1166 (1912)), which adds nothing to Washington. In addition, he cites State v. Frazier, 217 Mo.App. 524, 269 S.W. 410 (1925) and City of Mexico v. Gray, 203 Mo.App. 547, 219 S.W. 707 (1920). Neither of these cases seem to be in point. Gray involved a complaint in two counts. In Frazier, defendant had been charged and convicted of possession of "a certain doubler, worm, fermenting tub, mash tub and still," in violation of the prohibition law. The instruction permitted conviction on a finding that defendant had possessed either of the named articles. Frazier was reversed based on an expressly disjunctive submission and is not applicable here.
In State v. Daegele, 302 S.W.2d 20 (Mo.1957), defendant was convicted of molesting a female minor. The facts indicated that defendant committed two distinct acts of molestation at two separate times. The instruction submitted these acts in the conjunctive. Defendant alleged error on this basis. The court stated that the State merely assumed an added burden by the conjunctive submission and the instruction was not misleading and found no error.
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