539 S.W.2d 592 | Mo. Ct. App. | 1976
Charles Andrew Long appeals his conviction of robbery first degree by means of a dangerous and deadly weapon and sentence of five years imprisonment, asserting as error: (1) insufficiency of the evidence, and (2) refusal to instruct on lesser offenses.
On December 23, 1974, McKinley Buliox was shot and robbed by two armed men in his Delmar Boulevard-St. Louis Apartment. Buliox testified that appellant and a male companion came to his third floor apartment after he had tossed the keys to them from his upstairs window. It was an old building without doorbells and visitors frequently called or whistled to announce their presence. Buliox had known appellant casually for about a month prior to the robbery.
While Buliox sat talking with appellant, the other man left the room; returning shortly he brandished a pistol and demanded money. Startled by this development,
Appellant, as the sole defense witness, stated he met Buliox about one month prior to the robbery but denied any connection with the crime. He admitted visiting the apartment in the second week of November but testified he left when Buliox made homosexual advances. Appellant testified he refused these advances and Buliox told him, “I will be sorry.”
To support his first contention of error, appellant argues his testimony concerning the homosexual advances (categorically denied by Buliox) cast such doubt on the prosecuting witness’ credibility that as a matter of law the court should not believe him and without his testimony the evidence was insufficient to make a submissible case.
When examining the record to determine sufficiency of the evidence, we “view the facts in evidence and the inferences reasonably to be drawn from them in the light most favorable to the State, to determine whether there was substantial evidence to support the verdict.” State v. Williams, 521 S.W.2d 29[1] (Mo.App.1975).
Appellant’s unsupported allegations of prior bad blood and homosexual advances are insufficient to destroy the State’s witness’ credibility as a matter of law but goes instead to the weight of the testimony. “It is not our function or prerogative to weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is a function of the jury.” State v. Achter, 514 S.W.2d 825, 826[2] (Mo.App.1974). Competent evidence of all elements appearing, a submissible case was made. We find the point without merit.
Next appellant contends the trial court’s refusal to instruct on the lesser offenses of (1) robbery first degree (not with a dangerous and deadly weapon), and (2) stealing from a person, was error. As to the former, appellant’s argument misses the mark since robbery first degree is not a lesser offense which on a proper showing might warrant the proffered instruction. The information charged robbery first degree “contrary to Section 560.120 Missouri Revised Statutes.” It has been held in State v. Vigus, 66 S.W.2d 854, 857[12] (Mo.1933) that, “Robbery in the first degree, if the other elements are present, comprehends an act committed with or without a dangerous and deadly weapon.” (Emphasis ours.) Here the information additionally charged the robbery was committed “by means of a dangerous and deadly weapon, to-wit: pistol . . ” It has been held that “[sjuch an allegation is only for the purpose of invoking the more severe penalty prescribed by the first provision of section 4061,” (now § 560.135, RSMo. 1969). State v. Vigus, supra at 857. As stated in State v. Curtis, 324 Mo. 58, 23 S.W.2d 122, 124[2] (1929), “The new section 3310 [now § 560.135, RSMo. 1969], does not make that a crime which was not a crime before.”
The “dangerous and deadly weapon” element goes merely to the penalty and “it is not a charge of a separate offense, as such.” State v. Pope, 364 S.W.2d 564, 568
Concerning the refused instruction on stealing from a person, it has long been held that the court need not instruct on such offense if the evidence is sufficient to make a submissible case on the charge of first degree robbery with a dangerous and deadly weapon. See State v. Gideon, 453 S.W.2d 938, 940[10] (Mo.1970); State v. Keeney, 425 S.W.2d 85, 89[4] (Mo.1968). Under the evidence defendant was clearly guilty of robbery in the first degree or guilty of no offense at all. Alibi was the only defense. Appellant’s proffered instruction was properly refused. State v. Whalen, 148 Mo. 286, 49 S.W. 989, 990[3] (1899); State v. Thompson, 299 S.W.2d 468, 474[16] (Mo.1957). The judgment is affirmed.
. In 1975, § 560.135 was amended eliminating the death penalty.