State v. Van Horn

• Decision Date: 12 March 1956
• Docket Number: No. 2,No. 44901,44901,2
• Citation: 288 S.W.2d 919
• Parties: STATE of Missouri, Respondent, v. John W. VAN HORN, Appellant
• Court: Missouri Supreme Court

Page 919

288 S.W.2d 919

STATE of Missouri, Respondent, v. John W. VAN HORN, Appellant.

No. 44901.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 9, 1956.

Charles M. Shaw, and Wayne C. Smith, Jr., Clayton, for appellant.

John M. Dalton, Atty. Gen., David Donnelly, Sp. Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

John W. Van Horn appeals from a judgment imposing a sentence of five years imprisonment for robbery in the first degree. He claims error was committed in the refusal of an instruction and that certain remarks of the court constituted prejudicial comment on the evidence.

The sufficiency of the evidence is not questioned. It established that about 3:30 a. m. January 24, 1954, defendant and Wayne Whitt drove into the Arro-Gas service station on old Highway 99 in St. Louis county, Missouri, in Whitt's 1952 Studebaker coupe automobile, and that Van Horn entered the station and held up the lone attendant, Maurice J. McBride, with a loaded 45 caliber automatic pistol. The station was 'brilliantly lit up.' At gun's point McBride handed over what currency and change he had on his person and Van Horn, after having McBride open the money drawer, 'scooped up' the money in the drawer. He then forced McBride into the washroom. When McBride heard the automobile pull away, he came out. The receiver had been yanked from the telephone. He ran to a public phone, called the sheriff and gave him a description of the automobile, including its license number, and of defendant. Officers Schantz and Varvel were on patrol in the vicinity when they received the report over the patrol car radio. In a short time they observed an automobile answering the description received over the radio, and, following it, noted its license number was that given over the radio. They stopped the automobile and arrested defendant and Whitt, who was driving. They took defendant and Whitt to the station where McBride readily identified defendant as the person who had robbed him a few minutes before. Whitt's automobile was searched. An automatic pistol was found under the front seat and money was found in the glove compartment and more money in Van Horn's pockets. Additional facts will be stated in the course of the opinion.

Defendant contends his instruction 'A' was a proper converse instruction to the State's main instruction and should have been given. We have said, after discussing the issue: 'We therefore rule that in all criminal cases, if a defendant offers a correct instruction as the converse of the State's main instruction, it should be given, unless fully and fairly covered by other instructions. We rule that the practice of concluding the State's main instruction with the following words, '* * * and unless you so find you will acquit,' or words of like import, is not a sufficient reason for refusing a correct converse instruction offered by the defendant.' State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, 20[2, 4]; State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511, 513; State v. Talbert, 351 Mo. 791, 174 S.W.2d 144, 145. The State's instant instruction carried an 'if you do not find the facts to be as aforesaid beyond a reasonable doubt' conclusion.

It is the duty of the defendant to formulate and request a correct converse submission of the State's principal instruction. State v. Fraley, supra; State v. Hicks, 353 Mo. 950, 185 S.W.2d 650, 653[7, 8], citing cases. The court is not required to give a misleading, or confusing, or argumentative converse instruction, or one that improperly comments on the evidence. State v. Walker, 357 Mo. 394, 208 S.W.2d 233, 238[7, 8]. Consult also State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596, 597; State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 562.

Defendant's refused instruction was as follows:

'The Court instructs the jury that if you do not find and believe from the evidence beyond a reasonable doubt that on the 24th day of January, 1954, the defendant, John Van Horn, either acting alone or with another, did in and upon one Maurice J. McBride feloniously make an assault by means and use of a deadly weapon, to-wit, a pistol, and then and there did wilfully and feloniously put the said Maurice J. McBride in fear of an immediate injury to his person and by force and violence take from the person or possession of Maurice J. McBride the sum of $75.00 in currency of the United States, or any sum of money of whatsoever value, and a five dollar roll of dimes wrapped in white paper, and two rolls of quarters and three rolls of nickels, then you are instructed that it is your duty to acquit the defendant and you will find him not guilty of robbery in the first degree by use of a deadly weapon.'

The refused instruction did not correctly state the law. So far as material to the issue, a robbery, although a single offense, may be committed in either one or both of two ways; i. e., by the felonious taking of personal property 'by violence' to the victim's person, 'or by putting him or her in fear of some immediate injury to his or her person'. Sec. 560.120 RSMo 1949, V.A.M.S. Force and intimidation are alternative requirements. Both may but need not be present. State v. Broderick, 59 Mo. 318, 321; State v. Farmer, Mo., 130 S.W.2d 572, 574; State v. Burns, Mo., 280 S.W.2d 119, 122; 77 C.J.S., Robbery, Sec. 10, note 91 et seq., p. 455. The State's main instruction correctly authorized a conviction upon finding in this respect that defendant 'put the said Maurice J. McBride in fear of an immediate injury to his person, and by said fear of an immediate injury to his person as aforesaid, or by force and violence to his person' committed the robbery. (Emphasis ours.) Defendant's refused instruction told the jury to acquit if defendant did not put McBride 'in fear of an immediate injury to his person and by force and violence' rob him (emphasis ours), erroneously requiring a finding of both alternatives to convict.

McBride testified there was $100 on hand when he went to work, consisting of bills and coins, including two $10 rolls of quarters and a $5 roll of dimes, wrapped in white paper; that he put $20 in bills in his shirt and placed some loose change in his money changer, leaving the other money in the cash drawer; that he made some sales and cashed a $17 check in connection with his sales. The check was not taken in the robbery but the other money was taken. There was other testimony warranting an inference that there were also three $2 rolls of nickels on hand, but we do not find that McBride so testified.

The amount of the value of the property taken in a robbery is immaterial as long as it has some value. State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 77[3-6]; State v. Biven, Mo., 151 S.W.2d 1114, 1117[4, 5]. In this respect the State's main instruction required a finding that defendant took from McBride '* * * $109.87 United States currency, of the value of $109.87 lawful money of the United States, or any sum of money of whatsoever value * * *.' The State was only required to prove the taking of some money of some value (as submitted by the State) for a conviction; whereas the defendant was required to negative the taking of any currency (money) of any value for an acquittal. The refused instruction was erroneous in that it directed an acquittal, so far as essential to ruling this issue, if defendant did not take currency of some value 'and' a $5 roll of dimes, 'and' two rolls of quarters, 'and' three rolls of nickels; whereas defendant was guilty of robbery if, for instance, he took a roll...