State v. Williams

Citation548 S.W.2d 227
Decision Date28 February 1977
Docket NumberNo. KCD,KCD
PartiesSTATE of Missouri, Respondent, v. Curtis WILLIAMS, Appellant. 28238.
CourtCourt of Appeal of Missouri (US)

J. Arnot Hill, Kansas City, for appellant; Hill & Gamm, Kansas City, of counsel.

John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.


PRITCHARD, Chief Judge.

By the verdict of a jury, appellant was convicted upon three counts of robbery in the first degree and upon Count IV, for assault with intent to do great bodily harm. The jury set the punishment on the first three counts, respectively, at 20, 5, and 5 years imprisonment. It was unable to agree upon the punishment for Count IV, and the court therefore set it at 30 years imprisonment, and sentences were pronounced in accordance with these punishments, all to run consecutively in the Department of Corrections of Missouri.

Appellant makes seven points for reversal, the first two of which challenge the submissibility of Counts I and II of the indictment because, as contended, there was an absence of evidence that appellant, "or anyone else, robbed or took two dollars ($2.00) in lawful money from Glada Devore (Count I) (and three dollars from Carol Ballieu, Count II) with an unknown caliber revolver loaded with gunpowder and leaden balls."

On the morning of September 16, 1974, four men, armed with knives and guns, entered the Kansas City Baptist Temple, 55th and Blue Ridge Cut-off, forcing its pastor, The Reverend Truman Dollar, and other employees who were in various parts of the church, onto a central area floor. According to Reverend Dollar, some 7 or 8 minutes after he arrived at the Temple at 8:45 a. m., he was on the telephone facing the wall. Two black males entered his office, one very quickly, who reached over and put the telephone down. That person was identified by him as appellant, and the other had a sword 18 to 22 inches long, the actual blade. The man with the sword hit Reverend Dollar with the flat side of the sword on the head. At the time appellant took a smaller, curved knife to the small of Reverend Dollar's head, saying, "Come on, dude, you're going with us," and appellant told him, "Take us to the money." Reverend Dollar led the two to the reception area where he knew Glada and Elmer L. Calton were counting the previous day's receipts. The men took that money, then forced Calton, who knew the safe combination, to take them into the safe room. Near that area, Reverend Dollar was forced to lie on the floor and a man with a gun pointed it at him, saying, " 'Reverend, this is one time Jesus ain't going to get you through.' " The man took Reverend Dollar's billfold from him at that time. During the course of these events, the accounting secretary, Joyce Gaddie, was shot through the lobe of her left ear. The inventory of loot taken was $13,500.00, which matched that recovered, along with Reverend Dollar's billfold, near an abandoned car the same day, that car being a blue Ford or Mercury seen leaving the Temple parking lot, and which car had been involved in an accident. Three other men in a yellow Volkswagen were apprehended in the Temple parking lot. Appellant was identified by several employees as a participant in the robbery.

As to appellant's first two points, the evidence shows that both Glada and Carol were employees of the Temple and were present at the time of the robbery. Glada was then being held in another area near the safe, and one of the men holding her had a long knife. Carol was forced to lie on the floor; in fact, it appears that all of the employees were being held by the robbers, including a Mrs. Loper, who had been hiding in a closet but was subsequently found there by one of the robbers, and made to lie down. Glada testified that her purse was in another office room and that someone took approximately $2.00 in change from her purse, "They turned my whole purse over and took the change." Carol had a coin purse, containing about $3.00, lying on a desk, and after the robbers left she saw her purse open and emptied. Neither of these women saw their money taken. It is in this posture of the evidence that appellant contends that the court erred in submitting Counts I and II to the jury. In this contention he is in error because, "In general, it is essential to the commission of the crime of robbery that the taking should be without the consent or against the will of the victim. However, it is not essential that the victim be conscious, or aware of the robbery if conscious, provided force is used to render him unconscious or unaware of the taking." 77 C.J.S. Robbery § 21, p. 462. (Italics added.) See also State v. Hayes, 518 S.W.2d 40 (Mo.banc 1975), holding 518 S.W.2d at page 45, "The thing which distinguishes robbery from other offenses such as stealing is that the property is in the possession or under the control of the victim in such a manner or to such an extent that violence or putting in fear is used as the means of taking the property from the victim's possession or control." The Hayes opinion quotes from People v. Braverman, 340 Ill. 525, 530-531, 173 N.E. 55, 57 (1930), which in part is, "Nor was it necessary that the property should be in the actual or immediate presence of the owner or custodian." Here, there is no question but that both Glada and Carol were put in fear and that violence was exercised upon them. Under the authorities, supra, it is of no consequence that the contents of their purses were taken outside their presence, or that no one saw appellant or his accomplices empty the purses. See also State v. Hampton, 509 S.W.2d 139 (Mo.App.1974).

Appellant argues further that the indictment alleged that he took $2.00 in lawful money from Glada, who testified that some change was taken from her purse, and that Instruction No. 6 required the jury to find that Glada owned miscellaneous U.S. Currency, and that the proof was therefore insufficient in that "The words 'change' and 'coins' are interchangeable and the word 'currency' refers to paper money." Webster's New International Dictionary, Second Edition, defines "currency" as "That which is in circulation, or passes from hand to hand, as a medium of exchange, including coin, government notes, and bank notes; as the silver currency; the note currency." (Italics added.) See similar definitions: Leonard v. State, 115 Ala. 80, 82, 22 So. 564, 565 (1897); Webster v. Pierce, 35 Ill. 158, 163 (1864); Brittain v. State, 52 Tex.Cr. 169, 105 S.W. 817, 819 (1907).

Appellant's first two points are ruled against him.

The next contention of appellant is that the questionnaires sent to prospective jurors contain no reference to the requirement of § 497.130, RSMo (Law 1974), for compiling a jury list that "The list in no case shall contain less than twenty-five thousand names to be selected as nearly as may be equally from the several voting precincts of the county. * * *." The statute goes on to provide that in the selection of names of prospective jurors no examination shall be made into the qualifications of persons selected, except that a suitable questionnaire shall be sent to each. The form of questionnaire is specifically set out in the statute which further provides, "The questionnaire shall be in the following form and none other, without additions or subtractions * * *." Appellant's offer of proof, admitted by the state, does not attack the jury list selection as not being equal from wards and precincts, but only that the questionnaire omits that reference. Adding the reference to wards or precincts would be a statutory violation of the restriction of matters in the questionnaires, as last above quoted. From all that appears here, the provisions of the statute were complied with, and Point III, raising the contention is overruled.

Point IV is that the trial court erred in permitting the state to cross-examine appellant as to whether or not several witnesses lied when they testified against him, because it went beyond direct examination and also required appellant to give his opinion as to the motives of other witnesses in testifying. There was no objection on the ground that the cross-examination went beyond the scope of direct examination; it is not preserved for review; and will therefore not be further noticed. It has been held permissible in this state "to pit the testimony of the State's witnesses against that of appellant by way of relative comparison, as to which one is telling the truth." State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 609(8) (Mo.1950). See also Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338 (C.A.9th 1951). The cross-examination here merely pointed up the contradictions of the witnesses' versions of the facts and that of appellant. Point IV is overruled.

The fifth point is that the trial court erred to appellant's prejudice in failing to give MAI-CR No. 1.08(b) (admonishing the jury) at recesses subsequent to the first recess and at adjournment. It appears that during the four day trial there were four recesses during which the jury retired to the jury room without being given the MAI-CR 1.08(b) admonition, but there was never any objection made to the court's failure to do so. Appellant requests that the matter be...

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