State v. Vandament
| Decision Date | 11 March 1957 |
| Docket Number | No. 1,No. 45693,45693,1 |
| Citation | 299 S.W.2d 532 |
| Parties | STATE of Missouri, Respondent, v. Frank Marion VANDAMENT, Appellant |
| Court | Missouri Supreme Court |
Milton M. Metz, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
Defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced to five years imprisonment in the state penitentiary. See Sections 560.120 and 560.135 RSMo 1949, V.A.M.S. He has appealed, but has not favored us with a brief. We shall examine the assignments of error in his motion for a new trial.
Error is assigned on the action of the court in overruling defendant's motion for judgment of acquittal offered at the close of the state's evidence and also offered at the close of all the evidence. The grounds stated were that the state failed to prove the essential elements of robbery in the first degree and failed to prove defendant guilty of any offense whatsoever. The error, if any, in overruling the motion at the close of the state's evidence was waived when the defendant subsequently offered evidence in his own behalf. State v. Bledsoe, Mo.Sup., 254 S.W.2d 618, 622(6); State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 436(3); State v. Scott, Mo., No. 45,488, 299 S.W.2d 526. A review of the evidence is necessary in order to determine whether or not the court erred in overruling the motion at the close of all the evidence.
While the information properly charged the defendant as a principal, the state's theory was that defendant was present, aiding, abetting and consenting to the commission of the crime charged, although outside the building where the crime was committed; and that he shared in the proceeds of the robbery. See Section 556.170 RSMo 1949, V.A.M.S.
The evidence on behalf of the state tended to show that on September 7, 1955, Mrs. Ethel Andrews was the owner and operator of a tavern in the City of St. Louis, Missouri, located at 3685 Broadway, and known as the Mi-Way Bar. Daylight Saving Time was in effect in said city and the closing time for her tavern was 2:30 a.m., Daylight Saving Time. At about 1:20 a.m., Mrs. Andrews was alone in the tavern, there were no customers, and she went into the kitchen and began to wash dishes, pots and pans, but stood where she could see into the tavern and see the tables and stools where customers would sit. She heard a noise in the tavern but saw no one, so she walked over to where she could see behind the tavern bar. There she saw two strange men with handkerchiefs over their faces. One was at the cash register, while the other was going through the drawers. 'They were pulling the drawers out.' She didn't say anything, but stood in the door 'petrified', watching them. One of them ran into the storage room, then came back into the tavern and to the back door. When he saw Mrs. Andrews in the kitchen doorway, he pointed a pistol at her, 'stuck the gun out' towards her, and she 'screamed, ran out into the yard, screamed again, ran back into the kitchen, and upstairs' where she resided, and she then called the police. She stated that, when she saw the pistol, she didn't see anything further. On cross-examination she stated that she didn't know how long the men were in the tavern, she would guess about two minutes, perhaps not so long. When they saw her, one ran. She further said, 'all I saw was he stuck the gun out like that (indicating), and I screamed and ran out.'
Defendant was arrested on September 19, 1955, about 9:30 a.m., in front of 1622 Carroll Street. He was in a truck in front of that address and he was questioned that afternoon in the presence of Mrs. Andrews. Mrs. Andrews testified that on the 19th of September, following the robbery, an officer came for her and she went to the Hampton Avenue Police Station in St. Louis where she saw defendant for the first time and heard him questioned by police officials.
She testified that the defendant said: '* * * three fellows in a car picked him up at Fourteenth and Lafayette, and they told him they were going to rob a tavern with a gun, but they didn't know which one; they drove around, and found mine, * * * he didn't know which tavern they were going to rob; they went looking for one,--so, they drove around several times; and they stood in my back yard, at the kitchen door, watching me wash dishes, to be sure I was alone, and they came in; said he sat in the car with the motor running, with another man, and the other two came in.' The witness further testified that defendant said they had parked the car by her alley-gate and all four got out of the car and, after seeing she was alone, they decided to rob her. Defendant further said in her presence that, after the two boys came out of her tavern, they gave him his share of the money, which was $3 and he drank some of the whiskey taken from her tavern. He said the men told him that only $12 was obtained. According to the witness $26 in $1 bills was in fact taken from the cash register in her tavern. She further testified that, while she was at the police station, the defendant said he had seen her before as he stood in her yard watching her wash dishes.
There was other evidence that defendant was questioned by detective Frank Bill and detective Corporal Virgil Kleine in the presence of Mrs. Andrews and both of these witnesses testified that defendant made statements to the same effect as testified to by Mrs. Andrews.
Defendant did not testify in his own behalf and he offered the testimony of only one witness. This witness testified that, at about the time in question, defendant worked with him on a truck used in pedling vegetables; that defendant slept on the truck in front of witness' premises every night, except Saturday and Sunday nights; that witness' bedroom window faced the street; that witness could look out of his bedroom window every night and see defendant on the truck; that witness checked to see if defendant was on the truck before he went to bed about 9:30 to 10:00 p.m.; that defendant was on the truck on the evening of September 6, 1955; and that he was there the next morning around 2:00 to 3:00 a.m., when witness got up to go to work with defendant on the truck.
Defendant was prosecuted under the Habitual Criminal Act, Sec. 556.280 RSMo 1949, V.A.M.S., one prior conviction for larceny of a motor vehicle being alleged. Evidence was offered in support of this allegation and, also, of defendant's discharge from the state penitentiary, but the jury, while finding the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, found him 'not guilty of one prior conviction of felony as charged in the information.'
There was evidence from which the jury could find that defendant entered into an agreement with the others in the automobile and...
To continue reading
Request your trial
-
State v. Hawkins
...to blow her head off, constituted substantial and submissible evidence of violence under § 560.120. The decision in State v. Vandament, Mo., 299 S.W.2d 532, was based on acts held to have occurred subsequent to the taking and to and an escape, and the facts are therefore different. The purs......
-
State v. Wilborn
...Mr. Caby came into the back room of the service station. Appellant cites numerous cases, all to the effect as stated in State v. Vandament, 299 S.W.2d 532 (Mo.1957), that "In order to constitute robbery by intimidation, it is essential that the property taken be surrendered because of the a......
-
State v. Ide
...would present a closer issue as to the threat of some act on the part of the accused or "caused by the accused," State v. Vandament, 299 S.W.2d 532, 535 (Mo.1957), but, the rules of construction of criminal law statutes would seem to reach a conclusion, as here, of only supporting a prosecu......
-
State v. Beatty, 41222
...or violence, robbery is proven by showing the fear or violence preceded or was contemporaneous with the taking. See State v. Vandament, 299 S.W.2d 532, 535 (Mo.1957). Defendant claims the state failed to make this proof. Defendant argues he took possession of the property in question only a......