State v. Harley

543 S.W.2d 296, 1976 Mo. App. LEXIS 2654
CourtMissouri Court of Appeals
DecidedSeptember 23, 1976
DocketNo. 9688
StatusPublished

This text of 543 S.W.2d 296 (State v. Harley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harley, 543 S.W.2d 296, 1976 Mo. App. LEXIS 2654 (Mo. Ct. App. 1976).

Opinion

HOGAN, Judge.

This appeal arises out of the same episode as State v. Harley, 543 S.W.2d 288, No. 9681, reported concurrently herewith. In this case, defendant Harley, upon trial to the court, was found guilty of robbery in the first degree as defined and denounced by § 560.120, RSMo 1969, V.A.M.S.1 The Second Offender Act, § 556.280, was found to be applicable, and defendant’s punishment was assessed at imprisonment for life. Defendant appealed; we ordered this cause and No. 9681, State v. Harley, supra, consolidated for purposes of argument only.

The facts we recited as background material in No. 9681 need not be repeated; robbery as denounced by § 560.-120 has been generally defined as a compound larceny, composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking, State v. Gardner, 356 Mo. 1015, 1016-1017, 204 S.W.2d 716, 717[2] (1947), with the qualification that the gravamen of [297]*297the offense is the taking of the property of another from the person by violence or by fear and the ownership of the property taken is not material to and does not affect the offense. State v. Wright, 476 S.W.2d 581, 584[2] (Mo.1972). Additionally, the offense may be committed in two different ways, by taking from the person or in his presence the property of another. State v. Davis, 482 S.W.2d 486, 488[1] (Mo.1972). In this case the record clearly shows that on July 9, 1973, the defendant took $4,240 in cash in the presence of Foodtown employees; by his statement and by the testimony of the head clerk, defendant held the head clerk and other employees at gunpoint while the money was being collected. The head clerk, Jenness, testified directly that he was put in fear. The money, or sack of money, was identifiable in this case, and it was shown that when defendant was taken in custody, he was in possession of the very sack of money stolen in Jenness’ presence. It is therefore obvious that the elements of a robbery were established upon the defendant’s trial for first-degree murder, and therefore evidence sufficient to convict defendant of robbery in the first degree appears in the transcript filed in case No. 9681.

That transcript reflects that on October 9, 1973, the defendant was charged with first-degree murder. The supplemental transcripts filed in connection with this appeal show that on the same day, in a separate (amended) information, defendant was charged with first-degree robbery arising out of the same transaction. Following defendant’s conviction in case No. 9681, his presence — in Jasper County — was secured by writ of habeas corpus ad prosequendum, and on January 16, 1974, defendant by motion pleaded former jeopardy of the offense of robbery in the first degree in the manner prescribed by Rule 25.05(b). The motion, which is essentially a plea of autrefois convict, sought to invoke the bar of the double jeopardy clause of U.S.Const. amend. V, made applicable to the states through U.S. Const, amend. XIV. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Glover, 500 S.W.2d 271, 273[6] (Mo.App.1973).

The trial procedure followed here deserves a word of comment. On January 31, 1974, the defendant appeared in person and with the public defender. The following exchange occurred:

THE COURT: All right, Mr. Harley, would you step up, please?
THE DEFENDANT: Yes, sir.
THE COURT: Did you hear the pronouncement by your attorney concerning waiver of jury trial in Case Number 14544 wherein you are charged with First Degree Robbery?
THE DEFENDANT: I heard on a condition. To waive the jury trial on the terms that they would drop the kidnapping charge.
MR. PATTEN: When he’s waived the trial by jury and submitted the case to the Court on the previous transcript, I will do that.
THE COURT: Well, I want you to understand, Mr. Harley . . . you do have the right to a trial by jury, do you understand that?
THE DEFENDANT: I understand that.
BY THE COURT:
Q. And it is my understanding you did in fact have a jury trial on the case in Division II of this Court wherein you were charged with First Degree Murder, is this correct?
A. Yes, Your Honor.
Q. Now, we are prepared to afford you the same trial in this armed robbery case. Now, I want you to understand that you are entitled to that jury trial irrespective of what the Prosecutor does with regard to Case Number 14542, which is the kidnapping charge. Do you understand that irrespective of what he does on this kidnapping charge and — do you understand that?
A. Yes, I do.
Q. Understanding that, do you desire to submit this case — now, it is my under[298]*298standing that according to your attorney and the Prosecutor, I was to — rather than proceed to call witnesses and have you in Court to be confronted with those witnesses and have an opportunity to cross-examine them, that your attorney and the Prosecutor were going to agree that I should read the transcript which has been prepared by the court reporter of the evidence presented in the first degree murder trial, do you understand that?
A. I understand that.
Q. In other words, rather than having a trial by calling witnesses to testify, it was my understanding that the Prosecutor and your attorney had agreed that I should simply read the testimony, or transcript of the testimony as prepared by the court reporter, in the first degree murder case, do you understand that?
A. Yes.
Q. And you understand that you would have the right to have these witnesses called and be confronted by them and have the right to cross-examine them and have the right to have your attorney with you?
A. I understand that.
Q. Have you gone over all those matters with your attorney?
A. Yes, I have.
Q.

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Related

Benton v. Maryland
395 U.S. 784 (Supreme Court, 1969)
Ashe v. Swenson
397 U.S. 436 (Supreme Court, 1970)
Wells v. Missouri
419 U.S. 1075 (Supreme Court, 1974)
State Ex Rel. Wikberg v. Henderson
292 So. 2d 505 (Supreme Court of Louisiana, 1974)
State v. King
375 S.W.2d 34 (Supreme Court of Missouri, 1964)
State v. Richardson
460 S.W.2d 537 (Supreme Court of Missouri, 1970)
State v. Davis
482 S.W.2d 486 (Supreme Court of Missouri, 1972)
State v. Wright
476 S.W.2d 581 (Supreme Court of Missouri, 1972)
State v. Glover
500 S.W.2d 271 (Missouri Court of Appeals, 1973)
State v. Harley
543 S.W.2d 288 (Missouri Court of Appeals, 1976)
State v. Parsons
513 S.W.2d 430 (Supreme Court of Missouri, 1974)
State v. Damico
513 S.W.2d 351 (Supreme Court of Missouri, 1974)
State v. Gardner
204 S.W.2d 716 (Supreme Court of Missouri, 1947)
State v. Moore.
33 S.W.2d 905 (Supreme Court of Missouri, 1930)
Wells v. State
504 S.W.2d 96 (Supreme Court of Missouri, 1974)
Crews v. State
510 S.W.2d 425 (Supreme Court of Missouri, 1974)

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Bluebook (online)
543 S.W.2d 296, 1976 Mo. App. LEXIS 2654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harley-moctapp-1976.