State v. Littlefield

594 S.W.2d 939, 1980 Mo. LEXIS 406
Supreme Court of Missouri·Decided March 11, 1980·No. No. 61377·Published·Cited by 8 cases

Opinion

RENDLEN, Judge.

Defendant, charged with robbery in the first degree (while acting with others) was convicted of stealing property valued at more than $50.00 and his punishment, a $250.00 fine, assessed by the jury. For his sole allegation of error, defendant contends the trial court improperly submitted the offense of stealing as the evidence failed to support the submission. The Court of Appeals, Eastern District, affirmed the conviction but ordered the cause transferred that we might examine the question of whether larceny of property valued at $50.00 or more, § 560.156, RSMo 1969 and § 560.161.-1(2), RSMo Supp.1975, is a lesser and necessarily included offense of robbery. Section 560.120, RSMo 1969.1 We determine the cause as though here on direct appeal.

The dispositive facts are these: Just after 1:00 a. m. and shortly before closing on September 25, 1977, Maude’s Bar in South St. Louis was robbed. The only employee present was the bartender Max Lynch who testified that four male customers were in the tavern at the time, three of whom had arrived approximately one and one-half hours earlier. The fourth man, identified by Lynch as defendant, entered the tavern about a half hour later than the others and, after purchasing a beer, joined them at a table in the rear of the room. As Lynch was washing glasses behind the bar one of the customers walked to the bar and apparently without warning seized Lynch and forced his head to the bar while another of [941] the four aided the first assailant by holding Lynch’s arm. Defendant and the remaining member of the foursome went behind the bar and rifled the drawers, spilling the contents on the floor. The two men holding the bartender forced him into the restroom where they took his wallet containing $20.00. The attackers then fled and Lynch, emerging from the restroom discovered $250.00 was missing from the cash register. During the police investigation, he identified defendant’s photograph as that of the man who went behind the bar and emptied the cash drawer while he was held against the bar and later identified defendant in a police lineup.

For the defense, evidence was presented demonstrating that Littlefield had been dropped off at Maude’s Bar at 12:55 a. m. by his brother and his brother’s girlfriend with whom he had been drinking earlier that evening. Defendant claimed that he ordered a beer then walked to the restroom. Coming out he saw three customers scuffling with the bartender and he hurriedly left the bar without offering to aid the beleaguered victim. He denied involvement in the robbery.

Citing State v. Sawyer, 365 S.W.2d 487, 492 (Mo.1963), defendant contends no facts were presented to support the submission of the lesser included offense of stealing. However, the bartender in the case sub judice, unlike the victim in Sawyer who was robbed at gun point, testified that although Littlefield was not one of his assailants, Littlefield was one of the two who ransacked the drawers behind the bar. The jury could have found that defendant though not one of the attackers nor acting in concert with them in the robbery, took advantage of the bartender’s plight by stealing from the unattended till. Hence substantial evidence supported the submission of the lesser offense of stealing over fifty dollars and it was proper to so instruct. State v. Herron, 349 S.W.2d 936, 940 (Mo.1961); State v. Parker, 324 S.W.2d 717, 721-722 (Mo.1959). Appellant’s contention is denied.

However, the Court of Appeals certifying the cause here on their own motion under Rule 83.02, raised a question other than that suggested by defendant. The appellate court doubted whether the crime of stealing $50.00 or more, is a lesser included offense within the crime of • robbery, charged in the information, so as to support instructing down. The robbery issue was submitted by instruction no. 8 adapting MAI-CR 7.60 to the facts in issue. This was followed by instruction no. 10, which presented alternatively the stealing issue; more specifically, stealing property valued at $50.00 or more under MAI-CR 7.70 as distinguished from stealing from the person 2 which requires no proof of a particular dollar amount, permitting the jury to find defendant guilty of that charge if they did not convict of robbery. For reasons hereinafter discussed, we find it was not error to so proceed.

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State v. Littlefield, 594 S.W.2d 939, 1980 Mo. LEXIS 406 (Mo. 1980).

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