State v. Wilborn

• Decision Date: 06 May 1975
• Docket Number: No. 35759,35759
• Citation: 525 S.W.2d 87
• Parties: STATE of Missouri, Respondent, v. Bruce Ray WILBORN, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 87

525 S.W.2d 87

STATE of Missouri, Respondent, v. Bruce Ray WILBORN, Appellant.

No. 35759.

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

May 6, 1975.

Motions for Rehearing on Transfer Denied June 26, 1975.

William Shaw, Public Defender, Joseph R. Aubuchon, Asst. Public Defender, Clayton, for appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Bruce Ray Wilborn, charged under the Second Offender's Act, § 556.280, RSMo 1969, V.A.M.S., with robbery in the first degree, was found guilty by a jury and sentenced by the court to imprisonment for a term of thirty years.

On September 26, 1972, Frederick Leon Caby, proprietor of a Clark Service Station located at 7731 Page Avenue, St. Louis County, was servicing the automobile of Adrian DeHart. A Chevrolet Nova station wagon entered the service station. It had two or three occupants and the driver was appellant. At appellant's request Mr. Caby checked the oil and added a quart. Mr. Caby then returned to the DeHart automobile, but appellant followed him and stated that he wanted a dollar's worth of gasoline. Mr. Caby told appellant he would have to wait until he had finished servicing the DeHart automobile, and he then went to the back room of the building to get an oil rag. He testified that he 'found a colored male * * * ransacking my cabinets and money drawers and places where I keep the day's receipts.' According to Mr. Caby, 'his pockets and waistline was bulged with money he got out of the drawer, one of the drawers there.' When Mr. Caby entered the room the person 'pulled' from his pocket a .38 calibre revolver, the property of Mr. Caby which he had taken, pointed it at Mr. Caby and pulled the trigger, but the revolver did not fire because there was no bullet in the chamber. Mr. Caby grabbed the gun and 'pushed it over in one of the shelves there.' He also grabbed the person's hair and 'started pushing his face in the wall.' At this time appellant entered the room, picked up a pair of garden shears, and 'stuck' them in Mr. Caby's neck and told him to turn the person loose or he would run the shears through his throat. Because of this Mr. Caby turned the man loose, and he and appellant left and drove away in the Chevrolet Nova.

On cross-examination, Mr. Caby testified that when he first went in the back room 'they (he?) already had (the) gun and already had the money,' and that the reason he scuffled with the person was to 'keep this man from shooting me.'

Section 560.120, RSMo 1969, provides: 'Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; * * * shall be adjudged guilty of robbery in the first degree.'

The court instructed the jury that if it found and believed from the evidence beyond a reasonable doubt that the defendant, Bruce Ray Wilborn 'did wilfully, unlawfully and feloniously make an assault upon one Fred Caby by putting the said Fred Caby in fear of an immediate injury to his person by means of a certain dangerous and deadly weapon, a pair of shears, * * * and if you further find and believe * * * that by so putting the said Caby in fear of such personal injury * * * with the said shears * * * the defendant did then and there wilfully, unlawfully, and feloniously take and steal U.S. currency, the property of Clark Service Station, then and there in the lawful custody of Fred Caby * * * in the presence of and against the will of the said Fred Caby with the felonious intent then and there to steal the said currency, * * * then you will find the defendant guilty of Robbery in the First Degree by means of a Dangerous and Deadly Weapon.'

Appellant contends that the trial court erred in giving this instruction 'because there was no evidence that the defendant or anyone else obtained possession of the money by means of a dangerous and deadly weapon.' Appellant argues that possession of the money (and pistol) was obtained by stealth, and that the pistol and the money were already in the hand and pockets of the colored man when 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 apprehension of injury, and that the fear be that under compulsion of which the victim parts with his property. The fear essential to robbery must be caused by accused, intentionally, and not arise from the mere temperamental timidity of the victim." See, for example, State v. Adams, 406 S.W.2d 608 (Mo.1966); State v. Hawkins, 418 S.W.2d 921 (Mo. banc 1967); State v. Thompson, 414 S.W.2d 261 (Mo.1967); and for an older case, see State v. Parker, 262 Mo. 169, 170 S.W. 1121 (1914).

At the time the trial judge determined that the evidence would sustain an instruction on robbery, the court approved the following statement of the law, as set out in 77 C.J.S. Robbery § 11: 'In order to constitute robbery, the force or fear may and must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking; but as discussed infra § 13, force employed merely as a means of escape is not sufficient. * * * Although there is a measurable period of time between the taking and subsequent force, if the latter occurs so soon after the former as to be a part of the same transaction the violence is legally concomitant with the taking.'

In II Wharton's Criminal Law and Procedure, § 559, in discussing the 'Time of exercise of force and fear,' it is stated: 'The act of the defendant may either precede or be concurrent with the taking of the victim's property. But in any case the circumstances must be such that at the time of the taking of the property the victim was in fear. * * * The fact that there is a substantial interval between the time when the defendant acts and the time when the victim gives up the property does not necessarily preclude a conviction for robbery if it is found as a fact that the victim was reasonably acting under the influence of fear induced by the defendant.'

The precise factual situation of this case is unique, and general principles are helpful only as a guide, but in this jurisdiction, as well as others, it is well recognized that 'the violence used in the robbery must precede, or be contemporaneous with, the taking of the property.' (Italics added.) State v. Parker, 262 Mo. 169, 170 S.W. 1121, 1123 (1914). As noted by Wharton, supra, at § 559: 'Conflict in the decisions in some states arises because of the uncertainty as to when the taking is completed.'

In this case, the evidence is to be considered most favorably to the State and in conformance with the verdict, and when so considered at the time Mr. Caby discovered the man in the back room of his service station, the latter was then engaged in 'ransacking (the) cabinets and money drawers and places where (Mr. Caby kept) the day's receipts.' The person had picked up some or perhaps all of the money he ever obtained, but he was still ransacking the cabinets, and he had not started to leave or to depart. He then continued the project already started by use of the deadly and dangerous weapon, the gun, and the transaction constituting a robbery was completed only when appellant entered and threatened Mr. Caby with serious bodily injury by use of the shears. In other words, under the factual situation of this case, the force or threat of serious bodily injury made by appellant was contemporaneous with the taking and a part of the single transaction.

In State v. Parker, supra, the accused stuck his hand in the victim's pocket and removed some money before the victim knew what had happened. In ruling that the offense of robbery was not committed, the court said: 'The act of theft was wholly accomplished before (the victim) got frightened. No blow was struck or threatened; no weapon was used or shown; nor was any threat of injury, either immediate or remote, uttered by defendant.' (Italics added). It was then held that the violence used was not contemporaneous with the taking of the property. As distinguished from the facts of the Parker case, the factual situation of this case is comparable in some respects to the 'snatching with force' cases. In State v. Spivey, 204 S.W. 259 (Mo.1918), it was said: 'Snatching a valuable article from another is always denominated robbery where any force is exercised either to overcome resistance of the person robbed or in detaching the article taken where it is fastened in some way to the clothing or person of the one robbed.' See also State v. Houston, 451 S.W.2d 37 (Mo.1974), and the annotation at 42 A.L.R.3d 1381. In the 'snatching with force' cases the accused takes hold of the object but does not have full control because it is fastened to the victim, and force is necessary to complete the taking. In this case, the man in the back room had taken hold of some money but he did not have complete control because Mr. Caby entered the room while he was still ransacking, and force by the man and putting in fear by appellant was necessary to obtain control and possession of the money.

In State v. Clemons, 356 Mo. 514, 202 S.W.2d 75 (1947), cited and relied on by appellant, it was stated: 'There are decisions holding that when the accused had already obtained dominion over property by stealth and then used force and violence or putting in fear merely as a means of escape, the crime would not be robbery.' But in applying the rule to the facts of that case the court said: 'In this case it is true the appellant first snatched the pistol from the glove compartment of the automobile. But he...