State v. Stewart, 36874

• Decision Date: 13 April 1976
• Docket Number: No. 36874,36874
• Citation: 537 S.W.2d 579
• Parties: STATE of Missouri, Respondent, v. Donald STEWART, Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 579

537 S.W.2d 579

STATE of Missouri, Respondent, v. Donald STEWART, Appellant.

No. 36874.

Missouri Court of Appeals, St. Louis District, Division Two.

April 13, 1976.

Motion for Rehearing or for Hearing by Court En Banc Denied

May 17, 1976.

Application to Transfer Denied July 12, 1976.

John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, for respondent.

Robert E. Ahrens, St. Louis, for appellant.

ELEMENS, Presiding Judge.

This case stems from a planned payroll robbery that didn't quite happen. A jury found defendant guilty of attempted first-degree robbery and carrying a concealed weapon. Pursuant to the verdicts the court sentenced defendant to eight years' imprisonment on the attempted robbery charge and two years' imprisonment on the concealed weapons charge, to run consecutively. Defendant appeals.

We first take up defendant's contention that despite evidence of prolonged planning and preparation to rob, there was no overt act sufficient to constitute an attempt to rob. The gist of the State's case was that defendant and three accomplices planned to rob a courier as he left a bank with payroll money, armed themselves, took their assigned positions outside the bank and as the courier left the bank the police intervened and arrested the four men.

Two basic principles apply. The first is unchallenged: Where two or more persons knowingly act together unlawfully, the act of each is the act of all in the eyes of the law. Second, the four requisite elements of an attempt to commit a crime are an intent to commit it, an overt act toward its commission, failure of consummation and the apparent possibility of commission. The challenged element her is the 'overt act.' State v. Thomas, infra, that is, did the acts go beyond mere preparation and became perpetration? We take a closer look at the evidence.

The State's principal testimony came from Raymond Jones, whom defendant had recruited as one of the robbers, and from Paul Bosch whom Jones in turn had recruited. We summarize their testimony.

Some two months before the final act, defendant Donald Stewart, a sometime bondsman and security officer, had learned that every other Thursday morning a police officer-courier left the Jefferson Bank carrying money for a police department payroll. Stewart solicited Raymond Jones to aid in robbing the courier as he left the bank. More men would be needed, so Jones recruited Paul Bosch and Guy Burroughs. The four men met often and various plans were discussed, agreed upon, and modified. Defendant Stewart supplied Bosch and Burroughs with pistols and ammunition. By one of the plans Burroughs, the look-out man, was to be armed with Stewart's carbine rifle and cover the robbery from a nearby rooftop to prevent interference. The final plan was for Jones and Bosch, with drawn pistols, to intercept the courier as he moved from the bank toward his car in an adjoining parking lot, then to rob and disable him. Burroughs was to protect Jones and Bosch from action by the bank's guard stationed in a building on the parking lot and was to take whatever action necessary to prevent the guard from the interfering or pursuing. Meanwhile, defendant was to wait a block away in his parked car with motor running, in full view of the robbery, drive up, get Jones and Bosch, and escape.

From time to time the four men 'cased the joint' and made 'dry runs.' (On one occasion they headed for the bank intending to carry out the robbery but their plans aborted when the car ran out of gas.)

The final plan was to rob the courier on February 21, 1974. Meanwhile, treachery ¹ had crept in. Paul Bosch decided to drop out and for reasons of his own told St. Louis police in detail of the plot and its planning. In turn, police put Stewart, Jones and Burroughs under surveillance and got regular telephone reports from Bosch about preparations for the robbery. The police made detailed plans to thwart the robbery. On the morning of February 21 sixteen policemen were stationed in, around and atop the bank, most in civilian clothes. They had alerted the courier to the plot.

At the appointed hour defendant Stewart, Jones, Bosch and Burroughs drove to the bank and saw the courier's car in the parking lot. Each took his planned position, Jones and Bosch some sixty feet from the bank door, ready to intercept and rob the courier as he headed for his parked car with the payroll money. The courier left the bank door toward his parked car, but had walked only fifteen feet when, on signal from the police officer in charge, the police arrested all four 'subjects.' None had yet drawn a weapon nor threatened the courier.

We revert to the four requisite elements of an attempted crime. Here, there was clear evidence of intent to rob, of the possibility of robbing and of failure of consummation. The challenged element is the overt act. In 21 Am.Jur.2d, Criminal Law, at § 111, it is pointed out that 'no definite line can be drawn' between preparation and the overt act necessary to constitute criminal attempt, but 'it may be said that preparation consists in devising or arranging the means or measures necessary for commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made.' Cases cited infra support this.

Although Missouri cases state principles governing attempts, none is so factually similar to precisely solve the issue here. We adopt the general principles of State v. Thomas, 438 S.W.2d 441(5--11) (Mo.1969): 'An 'attempt' is an intent to do a particular thing which the law has declared to be a crime, 'coupled with an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law, that does not concern itself with things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act towards it falling short of the thing intended.' . . . To be found guilty of an attempt to commit a crime there must be some overt act in part execution of the intent to commit the crime, which falls short of the completion of the crime, which overt act must move directly toward the consummation of the crime. . . . Mere preparation is not sufficient to constitute an attempt to commit a crime. The defendant must have taken steps going beyond mere preparation, by doing something bringing him nearer the crime he intends to commit. 22 C.J.S. Criminal Law § 75(2), p. 231. The act need not, however, be the ultimate step toward, or the last proximate, or the last possible, act to the consummation of the crime attempted to be perpetrated.'

These principles in Thomas were applied where the State charged defendant with attempting to cash a bogus check. Defendant gave a storekeeper a false name, falsely claimed he was an employee of the maker, identified himself by a forged driver's license, and presented the check for cashing. He was arrested and contended on appeal he was not guilty of an attempt to pass the check since he had not committed an overt act by endorsing the check. Denying this contention, the court said: 'It is reasonable to conclude that but for the alertness of the store's representatives the crime would have been consummated; that there was no inherent impossibility but rather an apparent possibility of committing the crime; that the intervening circumstances which thwarted the consummation of the crime occurred as a result of the actions of third parties, acting apart from and independent of appellant's will and control. Appellant's acts went beyond mere preparation; they went far enough toward the eventuality of obtaining the cash so as to cross the line which divides criminal intention from criminal attempt.' See also Comments on MAI-CR, Attempts, pp. 2--5.

We also look beyond Mssouri decisions for answers to the question: What acts constitute an attempt? A logical factor is the proximity to the crime's completion. The Model Penal Code is enlightening. At § 5.01 and 5.02...