State v. Lumsden

589 S.W.2d 226, 1979 Mo. LEXIS 336
CourtSupreme Court of Missouri
DecidedNovember 14, 1979
Docket61478
StatusPublished
Cited by54 cases

This text of 589 S.W.2d 226 (State v. Lumsden) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lumsden, 589 S.W.2d 226, 1979 Mo. LEXIS 336 (Mo. 1979).

Opinions

HIGGINS, Judge.

Appeal from judgment on conviction by a jury of robbery, first degree, transferred from the Court of Appeals, Eastern District, after opinion, to review principally whether the trial court abused its discretion in connection with defendant’s voir dire examination of the venire. Affirmed.

Appellant charges the information violated Rule 24.01 in that it did not show the statutory section which proscribes the charged conduct and the section which fixes punishment.

Present Rule 24.01 on which appellant relies became effective January 1, 1977. The information in question was filed July 30, 1975 at which time former Rule 24.01 was applicable. Former Rule 24.01 did not require, as does the present rule, that the information contain statute references for offense charged and punishment, and no prejudice appears from their absence in this case. State v. Deloch, 554 S.W.2d 559 (Mo.App.1977).

Appellant also charges the information is deficient in that it purports to charge defendant with first degree robbery but that he was actually tried for first degree armed robbery. He argues that because the information did not mention a weapon, he was tried, convicted, and sentenced for an offense not charged.

Defendant was charged, tried, convicted, and sentenced for robbery in the first degree under § 560.120 RSMo 1969. First degree robbery thus charged is committed by putting a victim in fear. The requisite element of fear was charged in the information, and defendant used a gun as his means of creating such fear. It is not necessary that the means of creating the fear be charged in the information. State v. Reed, 412 S.W.2d 187 (Mo.1967). Also, by reason of the foregoing, absence of a charge that a gun was used to create fear in the victim did not provide a ground of error in admission of the gun into evidence. State v. Crockett, 543 S.W.2d 314 (Mo.App.1976).

Appellant contends the evidence was insufficient to sustain a conviction. He argues that because the robber was shown to have worn a baseball hat, sunglasses, and bandages during the robbery, no positive identifications were made, and his conviction therefore rested on insufficient circumstantial evidence.

When a conviction rests on circumstantial evidence, facts and circumstances to establish guilt must be consistent with each other, consistent with guilt of the accused and inconsistent with any reasonable theory of his innocence; in such cases the evidence need not be conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. State v. Lee, 556 S.W.2d 25 (Mo. banc 1977).

[228]*228Satisfaction of the foregoing requirement and sufficiency of evidence are demonstrated by evidence from which a jury reasonably could find that: On January 1,1975, at 6:30 a. m., a man wearing a baseball hat, overcoat, sunglasses and bandages over part of his face, entered Sambo’s Restaurant in St. Charles County. He pointed a pistol at a waitress-clerk, and ordered her to put money from the cash register into a paper bag. She did as directed, and put some $1,480 in five, ten, and twenty dollar bills into the bag. The robber took the bag and was observed by a number of witnesses to leave the restaurant, enter a white 1964 Chevrolet, drive to Interstate Highway 70, and proceed on that highway. Two restaurant employees followed the car and saw police who had been alerted to the robbery, stop it on the Missouri River bridge at St. Charles. Inside the car was a paper bag containing $1,480 in five, ten, and twenty dollar bills, the baseball hat, an automatic pistol, and white adhesive tape. The driver was wearing an overcoat of the same description as that worn by the robber at the holdup. He was not positively identified as the robber except he was said to match the robber’s general appearance. Defendant’s version of the circumstances, found incredible by the jury, was that he had been at Sambo’s but when he saw the robbery in progress he did not enter. Instead he returned to his car, but before he reached it, a man ran past him and entered the car. The man then left defendant’s car and jumped into another which had been driven nearby and that car left. Defendant then got in his car and left the area. He didn’t notice the bag of money in the front portion of his car and didn’t know how the gun got under his seat.

The principal question arises from appellant’s charges that the court’s rulings unduly restricted defendant’s voir dire examination.

Such ruling occurred when counsel attempted to question the panel on the term “reasonable doubt.”

MR. HAZELWOOD: Now I anticipate that His Honor will give you certain instructions at the close of the case.
Mr. Schroeder has alluded to those instructions. The Court’s going to instruct you that if you believe beyond a reasonable doubt that Mr. Lumsden is guilty, that you will return a verdict of guilty; and we’ve all watched television and things of that nature, and I just want to go into this a little bit at this time. What does the term ‘beyond a reasonable doubt’ mean to you?
MR. SCHROEDER: I’m going to object, Your Honor. I don’t think that—
THE COURT: Sustained.
MR. HAZELWOOD: Do you have any preconceived notion as to what that term means?
VENIREMAN JOHNSON: Yes.
MR. HAZELWOOD: What is your notion?
MR. SCHROEDER: Your Honor, I object. That’s not relevant.
THE COURT: Sustained.
MR. HAZELWOOD: Do you understand that it means more than a—
MR. SCHROEDER: Your Honor, I object. I don’t think he can define reasonable doubt at this time.
MR. HAZELWOOD: If I can’t go into this, these jurors are never going to know what this means and Mr. Lumsden is going to be prejudiced if any of them have an erroreous view of it.
THE COURT: The objection is sustained.
MR. HAZELWOOD: Do you have a notion that it means a mere probability—
MR. SCHROEDER: The same objection, Your Honor.
THE COURT: Sustained.
MR. HAZELWOOD: Do you have any notion that it involves a certain percentage—
MR. SCHROEDER: May we approach the bench, Judge?
THE COURT: Yes, you may.
(The following discussion was held out of the presence of the jury at the bench.)
MR. SCHROEDER: I ask that the defendant’s attorney be admonished not to go into this matter any further.
[229]*229THE COURT: At this time you cannot go into it further. You can in closing argument but not in voir dire.
MR. HAZELWOOD: Let’s try and change some laws because I think it is a terrible terrible prejudicial thing. If I wanted to ask one juror who feels it is mere probability of guilt, that is not the law.
THE COURT: At this time you are not arguing the case. Your objection is sustained.

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Bluebook (online)
589 S.W.2d 226, 1979 Mo. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lumsden-mo-1979.