State v. Murry, 39406

Decision Date13 March 1979
Docket NumberNo. 39406,39406
Citation580 S.W.2d 555
PartiesSTATE of Missouri, Respondent, v. Richard P. MURRY, Appellant.
CourtMissouri Court of Appeals

Christopher J. Holthaus, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Thurman, Asst. Attys. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., Thomas Palumbo, Asst. Pros. Atty., St. Charles, for respondent.

CRIST, Judge.

Defendant was convicted in the Circuit Court of St. Charles County of exhibiting a dangerous and deadly weapon and was sentenced to a term of one year in the county jail. We affirm.

Defendant first complains that the trial court erred in giving MAI-CR 13.12, the verdict director on the offense charged. He states that the instruction was not couched in the terms of the applicable statute, thus permitting a conviction when his actions may not have violated the statute. The pattern instruction requires a submission that the defendant exhibited the weapon "in a rude, angry and threatening manner." The statute defines the offense as exhibiting the weapon "in a rude, angry or threatening manner." Section 571.115 RSMo. Supp.1978.

This point was not preserved for review. Defendant did not raise specific objection to the wording of the instruction either at the time it was given or in his motion for new trial. Rule 20.03 requires specific objection to instruction error in the motion for new trial unless made on the record at the time of trial. State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977). Nor would the plain error rule, Rule 27.20(c), provide any basis for relief. Rule 20.02(c) provides that an applicable MAI-CR instruction shall be given to the exclusion of any other on the same subject.

Defendant next complains that the information was not couched in the language of the statute. This variance is based on the use of the conjunctive "rude, angry and threatening" in the information as opposed to the use of the disjunctive "or" in the statute.

The disjunctive "or" is not an essential averment in order to allege violation of the statute. The key inquiry in determining the sufficiency of an information is whether there is a statement of the essential facts constituting the offense charged. Rule 24.01. The cases relied on by defendant involved omissions of factual allegations necessary to allege commission of a crime.

Here the information alleged that defendant, on a specific date and in the presence of a specific person, exhibited a .38 caliber revolver in a rude, angry and threatening manner. Since the statute proscribes exhibiting the weapon in any one of those three manners the information charges the commission of a crime. Defendant was sufficiently informed of the nature and elements of the crime with which he was charged. Even assuming Arguendo that the language of the statute proscribes three distinct acts or offenses, it is proper for an information charging violation of such a statute to allege more than one of the acts as long as they are charged in the conjunctive. State v. Hook, 433 S.W.2d 41, 43 (Mo.App.1968). That was done here. Further, when the 1976 information was filed, it was not necessary, as it is now, to cite the applicable Missouri Statute. Rule 24.01; State v. Deloch, 554 S.W.2d 559 (Mo.App.1977).

Defendant complains that the evidence did not conform to the information in that the victim testified that he did not feel threatened when defendant exhibited the gun. This point has no merit on several grounds. First, the "threatening" manner referred to in the statute is not based on a victim's subjective perception of the dangers involved, but rather on the objective activity of the defendant by which a jury can judge whether the act was threatening. In this case, the jury could have found that defendant yelled an epithet at the victim, marched into his yard and pointed a revolver to the side of his head while standing within a foot of him. That was sufficient for the jury to have found the activity "threatening." Additionally, the victim testified that he was in such a state of surprise that "I really didn't know what I was thinking except I knew I had to talk him out of whatever was happening there."

Defendant next alleges that the trial court erred in denying his motion for continuance or recess to permit his mother to testify. By attorney affidavit the mother would allegedly have testified that she was an eyewitness to the occurrence and did not see her son exhibit a weapon. Defendant told his lawyer on the morning of trial that his mother was sick. The court had this information prior to trial. It requested a medical report and some indication of when she would testify. Defense counsel made several calls to the mother's home that morning. Counsel was told by unidentified persons that the mother was sick. S...

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19 cases
  • State v. McMilian, WD
    • United States
    • Missouri Court of Appeals
    • 8 February 1983
    ...accepted that burden, the state failed to prove he displayed the handgun in a rude, angry and threatening manner. He cites State v. Murry, 580 S.W.2d 555 (Mo.1979) and Stotler v. Bollinger, 501 S.W.2d 558 (Mo.1973). He contends that the prosecution submitted evidence only upon the third cat......
  • Ramsey v. United States
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 2 September 2020
    ...based on the victim's subjective perception of danger. State v. Williams, 779 S.W.2d 600, 603 (Mo.Ct.App.1989) (citing State v. Murry, 580 S.W.2d 555, 557 (Mo.Ct.App.1979)). Pointing a firearm at a victim can be an objective threat even if the victim testifies he did not feel threatened. Mu......
  • U.S. v. Bell, 04-1258.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 21 June 2005
    ...based on the victim's subjective perception of danger. State v. Williams, 779 S.W.2d 600, 603 (Mo.Ct.App.1989) (citing State v. Murry, 580 S.W.2d 555, 557 (Mo.Ct.App.1979)). Under Missouri law, pointing a firearm at a victim can be an objective threat even if the victim testifies he did not......
  • State v. Tyler, 40843
    • United States
    • Missouri Court of Appeals
    • 18 August 1981
    ...failed to object to these instructions at trial and failed to challenge them in his motion for new trial. See, State v. Murry, 580 S.W.2d 555, 556(1) (Mo.App.1979); Rule 20.03 then in effect. The alleged errors have not been preserved for review. We have examined the alleged errors pursuant......
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