State v. Moton

• Decision Date: 22 February 1972
• Docket Number: No. 1,Nos. 56201,56744,s. 56201,1
• Citation: 476 S.W.2d 785
• Parties: STATE of Missouri, Respondent, v. Arthur MOTON, Appellant
• Court: Missouri Supreme Court

Page 785

476 S.W.2d 785

51 A.L.R.3d 684

STATE of Missouri, Respondent, v. Arthur MOTON, Appellant.

Nos. 56201, 56744.

Supreme Court of Missouri, Division No. 1.

Feb. 22, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

James C. Jones, III, Darrell D. Wiles, St. Louis, for appellant.

BARDGETT, Judge.

Defendant Arthur Moton appeals from two separate convictions. In cause No. 56 201 (Circuit Court No. 1946--S, Honorable Lackland H. Bloom presiding), Moton was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon (§§ 560.120 and 560.135) of one Welton Rideout and sentenced by the court to twelve years' imprisonment on October 9, 1970, pursuant to § 556.280, RSMo 1969, V.A.M.S. In cause No. 56 744 (Circuit Court No. 1945--S, Honorable Harry M. James presiding), Moton was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon of one Calvin Cook and was sentenced on March 26, 1971, by the court to fifteen years' imprisonment to run consecutively to the sentence previously imposed in cause No. 56 201. Both convictions arose out of the same general episode and the appeals from the convictions have been consolidated for argument and decision.

On June 14, 1970, at about 3 a.m., defendant and another man, one Charles Robinson, walked into a Star service station in St. Louis and while Robinson held the service station attendants, Rideout and Cook, at gunpoint Robinson demanded and obtained money from attendant Rideout, and defendant, who did not have a gun, demanded and obtained money from attendant Cook. Robinson did not physically receive anything from Cook nor did defendant physically receive anything from Rideout. Defendant and Robinson then fled from the premises but were shortly apprehended by the police.

Defendant testified that he was at another place and not at the Star service station and did not participate in the alleged holdup.

The separate informations filed in these two cases each charged that Arthur Moton and Charles Robinson committed the offenses of robbery in the first degree by means of a dangerous and deadly weapon on June 14, 1970. In cause No. 56 201, Welton Rideout was the alleged victim; in cause No. 56 744, Calvin Cook was the alleged victim.

Cause No. 56 201 in which Rideout was alleged to be the victim was tried first and, as stated, defendant was found guilty of robbery in the first degree with a dangerous and deadly weapon.

Prior to the trial of the second case, cause No. 56 744, in which Cook was alleged to be the victim, defendant moved to dismiss the information asserting that to require him to stand trial would violate defendant's constitutional guaranty against double jeopardy under the United States Constitution, Amendments 5 and 14. The motion was overruled by the trial court and, as stated, defendant was tried and found guilty in the second trial of the robbery of Cook.

We will consider defendant's points on appeal in each case separately.

Re: Cause No. 56 201 (Circuit Court No. 1946--S).

This was the first case tried and is the one in which Rideout was robbed. The point asserted on this appeal is that the court erred in giving instruction No. 1, the verdict-directing instruction, because it authorized a finding of fact that defendant committed robbery on the person of Welton Rideout. The defendant contends that the theory of the state's case was that defendant aided and abetted Charles Robinson in the act of robbing Welton Rideout and there was no evidence that defendant robbed Welton Rideout. The evidence was sufficient to support a finding by the jury that defendant, acting jointly with Robinson, robbed Rideout. It was not essential to the conviction of defendant that defendant actually be the one who took money from Rideout where, as here, the two men acted together to produce the end result--robbery of Rideout.

State v. Bolden, Mo., 473 S.W.2d 355 (decided December 13, 1971, by this court) was an appeal from a conviction of first-degree robbery. The instruction complained of in Bolden is the same as the instruction complained of here, and the error alleged by Bolden was the same as the error asserted here, to wit, that the instruction should have required a finding that defendant aided and abetted Robinson. In Bolden we held the court did not err in giving the instruction complained of and what the court said in Bolden is wholly applicable to this case. The point is overruled.

The judgment in cause No. 56 201 is affirmed.

Re: Cause No. 56 744 (Circuit Court No. 1945--S).

The issues on this appeal involve (1) double jeopardy and (2) excessive punishment.

The information in this case is in all material respects the same as the information filed in No. 56 201 except that in this case the information alleges that defendant robbed Calvin Cook, whereas in cause No. 56 201 the information alleges the defendant robbed Welton Rideout.

After defendant was convicted in the first case and prior to trial of this, the second case, defendant moved to dismiss the information in this case 'for the reason that the offense with which defendant is charged herein arises out of the same criminal act, occurrence, episode, or transaction as the offense with which defendant was charged and found guilty by the jury on August 26, 1970 in Cause No. 1946--S; and that to require defendant to stand trial in the present proceeding would violate defendant's constitutional guaranty against double jeopardy contained in the Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment to the United States Constitution.' The court overruled the motion to dismiss and defendant was tried and convicted of the charge alleged.

Having affirmed the judgment of conviction entered in the first trial, supra, the first question presented is whether the second trial was barred by the double jeopardy provision of the United States Constitution, Amendment 5, as made applicable to the states by Amendment 14.

Defendant states in his brief that 'The prosecution's evidence in these two cases was practically identical. It showed that defendant committed a single unlawful act. He entered the service station with Charles Robinson. Robinson confronted Rideout and Cook with a gun; and while Robinson took money from Rideout, defendant took money from Cook. Then they both departed. In turn, defendant's evidence was the same in each case. He claimed that he was not at the service station premises at any time on the date in question, and that he did not commit a robbery there with Robinson.'

Except for the conclusion that the evidence showed that defendant committed a single unlawful act, the foregoing accurately states the factual situation.

Claims of double jeopardy arise out of many different factual situations and we will not undertake to set them out here. Nor can there be a general rule stated that covers all double jeopardy claims without causing substantial confusion. We are here concerned with defendant's contention as it applies to the crime of robbery in the first degree.

Two of the essential elements of robbery in the first degree with a dangerous and deadly weapon are that there be a person who is put in fear of immediate injury to his person and that some property which is not owned by the defendant and at least is in the custody of the victim be taken from the custody of the victim.

At the point in time that Rideout and Cook were being held at gunpoint and put in fear of immediate injury to their persons but before any property was taken from their custody, the offense of robbery had not yet occurred. Thereafter, when property was taken from Rideout, one offense of robbery in the first degree was completed; however, there had not yet occurred a robbery as to Cook and it, of course, was not essential to the commission of the offense of robbery of Rideout that anything be taken from Cook. If, at this point, the robbers had departed, there would have been no robbery of Cook although, as to Cook, other offenses may have occurred. However, the matter did not end there. The robbers did, acting together, take money from Cook and this, together with the other facts in the case, constituted the second robbery.

It is the defendant's position that the acts committed by defendant in robbing Rideout and Cook occurred practically simultaneously and were motivated by a single intent rather than a separate motive or intent as to each victim and, therefore, there was but one punishable criminal offense committed. Defendant describes this theory as the 'same transaction' test and urges its adoption by this court. That is to say that if the acts of an accused come within the scope of the defendant's definition of the 'same transaction' then there is but one punishable offense. Therefore, if there is only one punishable offense committed, the double jeopardy provision of the United States Constitution, Amendment 5 applicable to the states through Amendment 14, prohibits double prosecutions as well as double punishments, and the state cannot split a single offense into poarts and prosecute on the parts.

It also appears to be part of defendant's position that this court should adopt the 'same transaction' test Mr. Justice Brennan speaks of in his concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 25 L.Ed.2d 469. As we understand Mr. Justice Brennan's opinion, the 'same transaction' test would, with certain exceptions, require the state to prosecute a defendant at one trial for all of the offenses committed during a single episode or transaction but would permit the defendant to be punished for each separate offense of which he was found guilty. It would prohibit the state from prosecuting a defendant in separate trials for the several offenses committed during a single episode. As applied to the case at bar,...