State v. Pruett

• Decision Date: 12 February 1968
• Docket Number: No. 52918,No. 1,52918,1
• Parties: STATE of Missouri, Respondent, v. Raymond Carley PRUETT, Appellant
• Court: Missouri Supreme Court

Page 116

425 S.W.2d 116

STATE of Missouri, Respondent, v. Raymond Carley PRUETT, Appellant.

No. 52918.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1968.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 11, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, F. Daley Abels, Sp. Asst. Atty. Gen., St. Louis, for respondent.

William J. Shaw, Clayton, Alan G. Kimbrell, St. Louis, for appellant.

HIGGINS, Commissioner.

Appellant was convicted by a jury of robbery in the first degree. Section 560.120, V.A.M.S. Pursuant to the verdict and upon a finding of prior conviction, the court assessed appellant's punishment at 20 years in the custody of the Department of Corrections and sentenced him accordingly. Sections 556.280 and 560.135, V.A.M.S.

Appellant does not question the sufficiency of the case against him and a brief statement will demonstrate that the state made a case from which a jury could find beyond a reasonable doubt that appellant was guilty of robbery in the first degree of K-V Pharmacal Company by putting Walter A. Schulze 'in fear of an immediate injury to his person.'

Walter Schulze was an assistant supervisor and chemist for K-V Pharmacal Company in Brentwood, St. Louis County, Missouri. He was alone in the company's locked building at 5:30 p.m., July 14, 1966, when he heard a knock or rattle at the front door. He went to the door and saw two men. When he opened the door one of the men pulled a gun and both men entered the building, ordering Mr. Schulze to lock the door and take them to the laboratory. When in the laboratory the men took amphetamine from various locations and dumped it into a wastepaper basket and a bag. After that, the men took Mr. Schulze to the plant section where five or six drums of amphetamine were pushed to the back door near which Mr. Schulze noted a white Buick Riviera. Mr. Schulze was subsequently told to lie on his stomach on the floor and his wrists were tied. While so tied, Officer George Grace of the Brentwood Police Department entered the back door. He took one of the men, later identified as Douglas Jackson Tyra, into custody. The other fled upstairs and Mr. Schulze never again saw him in the building. Mr. Schulze later noted an open window upstairs.

Carolyn Schulze, Walter's wife, also an employee of K-V, left work at about 4:30 p.m., July 14, 1966, to get their little girl and do some shopping. She returned to the plant to get her husband around 6:00 p.m. When she rattled the front door he came out and told her he would be out soon as instructed by the two men who held him captive. Mrs. Schulze returned to her car and in fifteen or twenty minutes Officer Grace came by and advised her she must have set off the burglary alarm again. He went to the front door and then to the rear of the building. Mrs. Schulze then went again to the front door at which time a man with a pistol in his hand jumped from a window, landing within five feet of her. The man threatened to shoot her if she came near as he backed away from her around the building.

Officer Grace went to K-V about 6:00 p.m. in response to an alarm. When he left Mrs. Schulze and went to the rear of the building he saw a man loading the drums of amphetamine into the back seat of the Buick Riviera. He ordered the man into the building and, upon entering the building, saw Mr. Schulze lying on the floor with a man standing over him. That man, upon seeing Officer Grace, fled to the front of the building.

Officer Harry Dunman of the Brentwood Police Department went to K-V about 6:35 p.m. and searched a field to the rear of the building. He saw a man running in a creek bed thirty to thirty-five yards in front of him.

Appellant was identified by Mr. Schulze as the man who held the gun on him upon entering the building. He also was identified entering the building. He also was identified by Mrs. Schulze as the man she saw leap from the window of the plant, by Officer Grace as the man he saw standing over Mr. Schulze in the lower level of the plant, and by Officer Dumman as the man he saw running away from the rear of the plant in the creek bed.

Sergeant Fred Owens of the St. Louis Police Department went to an address on Park Avenue July 17, 1966, when appellant was arrested. He stayed with a late model red Dodge automobile parked in a vacant lot east of the premises at which appellant was arrested. He stayed with the car as it was towed to police headquarters where its trunk was opened and two guns were removed. One of the guns, Exhibit 4, was identified by Mr. Schulze as being the same in type and appearance as the one held on him him by appellant. Exhibit 4 also was said by Mrs. Schulze to 'look like' the one in appellant's hand when he leaped from the building.

Appellant adduced evidence tending to confuse his identification as one of the robbers and to show him in a different place at the time the robbery was committed. Appellant also called Douglas Jackson Tyra who admitted he pleaded guilty to the robbery of the K-V Pharmacal Company and stated that his companion had been one Ray Sommers.

Appellant charges error in submitting Instruction No. 1 to the jury 'for the reason that said instruction was the verdict directing instruction, purporting to cover the whole case, and entirely ignored the defense of alibi, said defense being fully supported by evidence in the case.'

There is no question that a verdict-directing instruction which purports to cover the whole case and ignores a defense supported by the evidence is erroneous and constitutes reversible error, State v. Winn, Mo., 324 S.W.2d 637, 640--641(1); State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 474(13); State v. Drane, Mo., 416 S.W.2d 105, 107(1, 2); but that rule does not help this appellant because Instruction No. 1 did not ignore his defense of alibi.

The defense of alibi is that even if the offense was committed as charged, the accused, at the time of commission, was at another and different place than that where the offense was committed and therefore could not have been the person who committed the offense. Such defense was accorded this appellant by Instruction No. 3 to which no objection was made. Instruction 1 referred to such defense by requiring the jury to find the defendant present at the K-V robbery in that it required a finding that he committed the robbery of K-V by then and there putting K-V's employee, Walter Schulze, in fear of immediate injury to his person. The jury would, of necessity, have to find him present in order to find that he committed such specified acts. This contention was answered in State v. Merrell, Mo., 263 S.W. 118, where the offense was murder and the defense alibi. The same error was assigned, i.e., that the verdict-directing instruction omitted reference to the alibi and compelled a finding of guilt if they did not believe the evidence of alibi. 'In so far as failure to refer to the defense of alibi is concerned, no just criticism of the instruction can be made. The court gave a proper separate instruction on that subject. The criticized instruction required the jury to find that the defendants made an assault upon the deceased and shot and killed him. This necessarily required the jury to find that defendants were present at the killing, and negatived the idea that they were elsewhere.' 263 S.W. l.c. 123(12).

Appellant's citations are to be distinguished in that they involved defenses in which presence of the accused to commit the offense was not necessarily a part of the offense as in this case, e.g., theft or unlawful use of an automobile where accused had an honest belief he held title to the automobile (State v. Drane, supra); murder where the defense was self-defense as opposed to alibi (State v. Winn, supra); leaving the scene of an accident where the defense was that defendant had complied with the law requiring the giving of his name and address, etc., under applicable law (State v. Dougherty, supra).

Appellant complains in his Points II and III of the giving of Instruction 3 on his...