STATE of Missouri, Respondent, v. Clinton Edward HAWKINS, Appellant.
No. 51078.
Supreme Court of Missouri, In Banc.
Oct. 9, 1967.
418 S.W.2d 921
H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
EAGER, Judge.
Defendant was charged by amended information as an habitual offender,
The case has pursued an unusually lengthy course since sentence was imposed. Additional time was granted for filing the transcript; thereafter the case was submitted and an opinion was written in Division Two of this Court. Upon a dissent it was transferred to the Court In Banc and argued there twice. Prior to the last argument we ordered that counsel be appointed to represent defendant upon the appeal, and a continuance was granted upon his request. Thus, highly competent counsel briefed and argued the case for the appellant prior to the last submission. We consider only the questions so presented. The points raised involve the evidence to such an extent that we shall need to state the facts in some detail.
On the morning of February 28, 1964, a man driving an automobile and wearing a stocking mask approached the Farmers Bank of Antonia in Jefferson County, and stopped in front of it. Shirley Recar, a teller, was looking out the window from her teller‘s counter at the front of the bank, saw him and screamed “here comes a man wearing a mask, someone lock the door“; thereupon she ran to the rest room in the rear and appeared no more in the sequence of events. Wilma Otto, assistant cashier, was at her window or counter, presumably the next one; she picked up her purse and took out some keys; the masked man walked in with a revolver in one hand and a brown satchel in the other. He came directly to her window, laid the gun on her counter and said “move back“; Wilma took one step back and the man said “move back farther“; she did. The man then climbed over the counter and, with the gun in his hand, said to her “move back farther or I‘ll blow your head off“; apparently she did so, and the man immediately began taking the money out of the cash drawer next to hers, putting it in his satchel; at that time he told her to go to the back office which she did, since he was pointing the gun at her; at this time the telephone rang and he told her not to answer it, but she came back into the bank proper and then saw that he was still taking money from the “cash drawers.” Wilma had tripped the burglar alarm and expected one or more of the business neighbors to come; at this time she saw Mr. Freedman (one of such neighbors) outside and yelled to him “run Mr. Freedman, it‘s a holdup.” At that time the robber left the bank and was intercepted by Mr. Freedman who, with some rather delayed help, subdued and captured him. One shot was fired from the revolver and it penetrated the bank window, shattering glass on Wilma. Five loaded shells remained in the gun. The money was recovered, $5,712, the precise amount missing from the cash drawers. At the trial defendant was definitely identified as the robber by certain of those who saw him after his mask was removed.
Granville Cook, cashier of the bank, was in his office about 25 feet from the door when the robber entered; he saw the man enter and tripped the burglar alarm in his office. He could not and did not (from his position) see the man actually taking the money from the cash drawers, and he apparently did not leave his office until the man left. Various exhibits were identified at the trial, but they are not material to our discussion.
The defendant did not testify; the evidence in his behalf consisted only of the testimony of his mother and wife to the effect that he had suffered two head injuries (one when a child) and that there were periods when he would seem dazed and uncommunicative for days at a time; also, that he had bad headaches and at times did not have any recollection of where he had been. A psychiatrist from the Farmington State Hospital, Dr. Doronila, where defendant had been kept for
The points briefed and argued here all concern Instruction No. S-1, which, in its pertinent parts, was as follows: “You are instructed that if, upon consideration of all the facts in the case, in the light of the court‘s instructions, you believe and find from the evidence, to a moral certainty and beyond a reasonable doubt, that at the County of Jefferson and State of Missouri, on the 28th day of February, A.D. 1964, the defendant, Clinton Edward Hawkins, did feloniously and wilfully, by means of a dangerous and deadly weapon, towit: a revolver, by force and violence or by threats of force and violence to the person of Granville Cook, Wilma Otto, and others, employees, clerks, agents and officers of the Farmers Bank of Antonia, if you so find, and against their will, if you so find, and by putting them, or any of them, in fear of any immediate injury to their person, did rob, steal, take and carry away from their presence, person and possession, Five Thousand Seven Hundred Twelve Dollars ($5,712.00) lawful money of the United States, or any part of said sum of money, * * *.
“The word ‘robbery‘, as used in these Instructions, means the felonious taking of the money or property of another, of any value whatever, from a person, or in his or her presence, or from his or her possession, and against his or her will, by violence to his or her person, or by putting him or her in fear of an immediate injury to his or her person.”
We shall note first certain well established principles as fixed by our decisions, and then consider appellant‘s points.
The specific complaints made of Instruction S-1 are: (A) that it permitted the jury to find violence or threats of violence to persons not named; (B) that it permitted consideration of such as offered to persons not employees of the bank and after defendant had obtained possession of the money and was leaving; (C) that “threats of violence” are not a proper element of the offense of robbery, although perhaps evidence of intimidation; that the term should not have been used in the disjunctive with “violence,” and as used with the “loose references” to “others,” it was prejudicially erroneous; (D) that the submission of “putting in fear” as to different “victims” in the disjunctive allowed the jury to speculate and the submission was not supported by the evidence.
Points A and B may be considered as one. What counsel seems to suggest is that the language of the instruction permitted the jury to consider the scuffle between defendant and Mr. Freedman outside the bank as a part of the violence or threats upon which a finding of guilt might be based. It has been held that evidence of violence or intimidation used in effecting an escape after a robber had obtained possession of the property, was not sufficient to support a charge of robbery. State v. Vandament, Mo., 299 S.W.2d 532. See also State v. Holmes, 317 Mo. 9, 295 S.W. 71; State v. Parker, 262 Mo. 169, 170 S.W. 1121. Counsel is thus correct in suggesting that violence or intimidation used or effected by defendant on Freedman may not constitute an element of the offense of robbery. But this does not prove the instruction to be erroneous. The term “and others,” in the instruction was followed immediately by the words “employees, clerks, agents and officers of the Farmers Bank of Antonia,” and these words, as we construe them, clearly limited all such “others” to persons who were employees of the bank. The jury could hardly interpret the instruction otherwise; all the employees were inside the bank, and the instruction did not, as contended, unduly expand the consideration of “violence” or “threats of violence.”
(C) We agree with counsel that “threats of violence,” as such, do not constitute an element of first degree robbery. The authorities cited by him on this point indicate generally that an instruction is improper when it is broader than the evidence, or when it submits a different offense from the one charged. That may be conceded as a general proposition. We have held that that was substantial evidence of “violence” here, and hence a submission of that element would have been proper. But at the trial the State, in a multiplication of words, submitted a taking “by force and violence or by threats of force and violence.” The element of threats, submitted thus in the disjunctive, may “be evidence of intimidation or putting in fear” (as counsel for defendant concedes); but it is not the equivalent of violence. Hence, by that part of the submission the jury was only required to find the lesser of the two elements, i. e., an intimidation or a putting in fear, which actually was a mere duplication of the second phase of the total conjunctive submission, namely, “and by putting them, or any of them, in fear of any immediate injury * *.” We hold that, although the first submission was thus insufficient as a submission of violence, it was mere surplusage or, at the most, harmless error. The reference to “others” was not reasonably subject to the interpretation which counsel places upon it, as we have already indicated, and did not render the instruction erroneous.
(D) We now consider the submission of taking the property by “putting in fear“; the “them, or any of them,” as used in that part of the submission, neces-
The statute very obviously means that the fear created should have a direct connection with the obtaining of the property, but this does not necessarily require such proof as that of proximate causation in personal injury cases. In the usual robbery case only one victim is involved and the issue is simple; here the money belonged to the bank and it was the bank which was robbed; all three of the employees were jointly in charge of the money. Defendant did not merely take money from Wilma Otto‘s drawer; he first took the money from “the cash drawer next to mine” (presumably Shirley Recar‘s) and later was “still taking money from the drawers.” This was the bank‘s money, not Otto‘s, and no one employee had exclusive possession of it. There was substantial evidence and a presumption that all three employees were placed in fear, and defendant took the money from the possession or constructive possession of all three. The words of the statute, namely, “by putting him or her in fear,” may equally be construed as the plural “them,” under the express direction of
However, one further point remains for our consideration. Defendant was charged by amended information under our Second Offender Act,
The Court received, over objection, a document certified by the Department of Corrections to show prior conviction and imprisonment. That document is not shown in our transcript and we may not determine its sufficiency as proof. Thereafter the Court found that: “* * * the defendant will, by the Court, be found to have been imprisoned in the pentitentiary previously in accordance with the certification of the record, as shown in Exhibit #6.” This was not a sufficient compliance with the statutory requirement which is, as we construe it, that in order to make the act applicable the Court must find that the defendant had been convicted of and sentenced for one or more offenses punishable by imprisonment in the penitentiary and that he had subsequently been imprisoned, fined, paroled or placed on probation therefor (in the alternative, to accord with the evidence). See, State v. Crow, Mo., 388 S.W.2d 817, and State v. Hill, Mo., 371 S.W.2d 278. The present findings do not follow the statute and we cannot rewrite it. Nor is it our function to make the findings here. The judgment is therefore reversed, and the cause will be remanded in order that the trial court may bring the defendant before it, with counsel, at an appropriate time, for further consideration of the evidence already submitted on this issue, and of any such additional evidence as may be submitted, and thereupon to make appropriate findings as indicated in this opinion. If the trial court then finds one or more prior convictions, sentences, and imprisonment or parole therefor in accordance with
Except as indicated, we find those parts of the record which we examine under Rule 28.02 to be sufficient. The judgment is reversed and the cause is remanded for further proceedings as indicated in this opinion.
FINCH, DONNELLY and STORCKMAN, JJ., concur.
HENLEY, J., dissents in separate dissenting opinion filed.
HOLMAN, C. J., and SEILER, J., dissent and concur in dissenting opinion of HENLEY, J.
DISSENTING OPINION
HENLEY, Judge.
I respectfully dissent for the following reasons.
However, I would hold that the evidence does support a taking of the bank‘s money by putting Wilma Otto in fear of some immediate injury to her person. But, in submitting the method of taking by putting in fear, instruction S-1 does not correctly state the law.
The statute proscribes a taking from the person1 of the agent in charge, against the will of the agent, by putting him or her in fear of some immediate injury to his or her person. It is the taking from the person and against the will of the agent in charge by putting that person in fear that the statute proscribes; not the taking from that person, against the will of one or more other agents of the owner by putting in fear “any [one or more] of them.” This instruction, by the use of the words “or any of them,” directs a verdict of guilty upon a finding by the jury of a taking of the bank‘s money from Wilma Otto by putting someone else in fear of some immediate injury to his person. In other words, the instruction would authorize a verdict of guilty if the jury found that the taking from Wilma Otto was by putting either Granville Cook or Shirley Recar, or both, in fear, although the agent from whose person the money actually was taken may not have been in fear and the taking not against her will. Put another way, the instruction authorizes a verdict of guilty if any of the other agents of the bank were put in fear without a requirement that the jury also find that the taking was by putting the agent from whose person the money actually was taken in fear of some immediate injury to her person. In these respects the instruction misled and positively misdirected the jury as to the law of the case. Had the instruction required that the jury find that Wilma Otto, alone, as the
For the reasons stated, I would reverse the judgment and remand the case for a new trial.