STATE of Missouri, Respondent, v. Ezra Owen DAVIS, Appellant.
No. 56633.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
It may be nоted that the problem presented in this case will be less likely to arise in the future. In 1971, the Missouri General Assembly enacted legislation by which Missouri has become a party to the “Agreement on Detainers.”
Judgment affirmed.
HIGGINS, C., concurs.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
HOLMAN, P. J., and BARDGETT, J., concur.
SEILER, J., dubitante.
John L. Sullivan, St. Louis, appointed counsel for defendant.
WELBORN, Commissioner.
Appeal from 15-year sentence on jury verdict finding Ezra Owen Davis guilty of robbery in the first degree by means оf a deadly weapon. The punishment was fixed by the court when the jury could not agree on the punishment.
At around 2:00 P.M. on July 14, 1970, Debra Love and her sister, Jessie, were among the passengers on a Lee Avenue bus, operated by the Bi-State Transit Authority, traveling on 20th Street in the City of St. Louis. The bus stopped at a bus stop in the vicinity of the Pruitt-Igoe housing project and three boys carrying handguns boarded the bus. One of them pointed his weapon at the drivеr and announced a holdup and told the passengers to place their purses in the aisle. Debra and Jessie were on a seat immediately behind the driver. Jessie who was carrying Debra‘s purse placed it on the floor of the bus at Debra‘s feet. One of the robbers picked it up. The robbers fled taking Debra‘s purse and the purses of other passengers.
Ezra Owen Davis was arrested by police on suspicion that he was invоlved. He was released when evidence to support charges against him was insufficient. He told the police that he perhaps could assist them and went to the juvenile detention center to view a lineup of suspects. Debra and the bus driver saw Davis at the detention center and both recognized him as the person who held the gun on the driver. Both identified Davis at his trial on the charge.
Appellant‘s first two points on this apрeal are interrelated. He argues that there was a fatal variance between the information which charged that the purse was tak
Under the statute, the offense of robbery may be committed in two separate ways, by taking from the person or in his presence the property of another. State v. Flynn, 258 Mo. 211, 167 S.W. 516, 518 [3]. The two methods are not repugnant and are therefore properly chargeable in a single count of an information which uses the conjunction “and” rather than the disjunctive “or” of the statute. Under such a charge proof of the commission of the offense by either of the methods will sustain the charge. State v. Johnstone, Mo. Sup., 335 S.W.2d 199, 203 [1, 2]; State v. Johnson, Mo.Sup., 457 S.W.2d 795, 799 [7]; State v. Craft, 299 Mo. 332, 253 S.W. 224, 277 [5].
The evidence here showed a taking of Debra‘s purse in her presence and against her will. Jessie placed the purse on the floor of the bus at Debra‘s feet. She was сrying, scared, trembling. One of the robbers picked up the purse and it was taken from the bus. The purse was within Debra‘s reach and she could have exercised her right to dominion over it but for the fear caused by the robbers. Sеe
Therefore, accepting appellant‘s position that the evidence showed a taking from the person of Jessie, such variance from the charge could not have been prejudicial to the appellant inasmuch as the state‘s evidence, in any event, had adequately supported the charge, proof of taking from Debra‘s person not being essential. Appellant has not demonstrated that such variance was “material to the merits of the case and prejudicial to the defense of the defendant.”
The principal instruction did call for a finding of taking from the person of Jessie, rather than Debra, as charged in the information. However, inasmuch as the instruction also conjunctively called for a finding of a taking in the presence of Debra, no prejudice could have resulted. The jury was required to find the essential taking from the presence of Debra, along with the other elements of violence and putting in fear. The required additional finding of taking from the person of Jessie was surplusage, having no bearing on the рroof of the offense charged and in no manner burdening the defense of the cause. See State v. Hawkins, Mo. Sup., 418 S.W.2d 921, 925 [7, 8].
Two police officers testified that they conducted an investigation into the holdup which resulted in appellаnt‘s being taken into custody, interrogated and released. At the close of each of the officer‘s testimony, defense counsel moved that the entire testimony be stricken “as it is in no way relative to the issues raised in this proceeding” and the testimony did not connect the defendant with the case. The motion was overruled in each instance. By his motion for new trial, appellant attacked the unfavorable ruling on the grounds that it “was introduced merely to incite the
These varying, shifting grounds of оbjection at trial, assignment of error in motion for new trial and assignment of error on appeal present no basis for review in this court. State v. Washington, Mo. Sup., 320 S.W.2d 565, 568 [7, 8]; State v. Hernandez, Mo.Sup., 325 S.W.2d 494, 496 [3, 4]. The original objections related to materiality and relevancy. No suggestion was advanced that the testimony was designed to show police opinion of appellant‘s involvement in the crime. There is nothing in either officer‘s testimony which in any way intimates a technical insufficiency in the evidence which might have been cause for his originally being taken into custody. Likewise, the trial objection in no manner reflected any such complaint regarding the testimony, so that the assignment of error in the motion for new trial was wholly without basis. A new ground of error may not be here advanced. This is true particularly of the hearsay assertion, made in this court for the first time. State v. Washington, State v. Hernandez, supra.
Appellant attacks the instruction on “reasonable dоubt” because of the language that “a doubt to authorize an acquittal * * * ought to be a substantial doubt touching the defendant‘s guilt * * *.” The contention is that such language negates the requirement that acquittal should result if the jury hаd “reasonable doubt of the defendant‘s guilt.” This complaint has been frequently raised and found not meritorious. See State v. Edwards, Mo.Sup., 435 S.W.2d 1, 7 [11]. The only authority cited by appellant in support of his contention, State v. Miller, 190 Mo. 449, 89 S.W. 377, does not discuss this propositiоn and provides no reason for the acceptance here of this consistently rejected objection.
Judgment affirmed.
HIGGINS, C., concurs.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
HOLMAN, P. J., and BARDGETT, J., concur.
SEILER, J., concurs in separate concurring opinion filed.
SEILER, Judge (concurring in result).
I concur in the result reаched, but with respect to the instruction on reasonable doubt do so only for the reason that the instruction has been previously approved and so the trial court cannot be criticized for using it. Examination of some twenty or thirty decisions approving the instruction shows it is usually done without discussion of reasons or justification other than precedent, bringing to mind the words of Holmes, J., in Hyde v. United States, 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114, “* * * It is one of the misfortunes of the law that ideas becоme encysted in phrases and thereafter for a long time cease to provoke further analysis . . .”
However, in the future, I would hope something could be done to eliminate from the approved instruction оn reasonable
The trial court is required to instruct on reasonable doubt and once it tells thе jury “The defendant is presumed to be innocent unless and until proved guilty beyond a reasonable doubt” that ought to be sufficient. No definition of reasonable doubt should be given. Definitions lead to comments on the evidence and efforts to get an edge one way or the other.
Here, for example, the definition qualifies and changes reasonable doubt to substantial doubt if applied to acquittal, while leaving it at reasonаble doubt if applied to conviction. This does not seem to me to be an even-handed application of the rules of the contest between the contending parties. “Reasonable” and “substantial” are not synonymous, as can be seen by referring to any of the standard dictionaries. The point was well put by counsel in argument recently where he pointed out that if one had to undergo a serious operatiоn and were querying the doctor as to the prospects for a successful outcome, how differently the person would feel if the doctor told him there was only a reasonable chance of success as opposed to being told there was a substantial chance of success.
It is noteworthy that the instruction as now phrased is invariably requested by the state and opposed by the defendant. While empiricаl knowledge is hard to come by in a question of this sort, it would seem the practical effect of this instruction would be to strengthen the state‘s chances of doing no worse than a hung jury and to reduce the defendant‘s chances of doing better than a hung jury.
I would be in favor of eliminating from future instructions on reasonable doubt this qualification that it must be a substantial doubt to acquit.