State v. Marberry

639 S.W.2d 290, 1982 Mo. App. LEXIS 3645

• Court: Missouri Court of Appeals
• Decided: August 31, 1982
• Docket: No. 44824
• Status: Published

Opinion

CLEMENS, Senior Judge.

The narrow issue here: Was defendant William Marberry guilty of armed robbery when to facilitate escape he threatened the victim with a gun after defendant had burglarized the victim’s home? We say yes.

The pertinent evidence: When victim Oliver Hulsey came home defendant, armed with a pistol, came out carrying a bag of loot. On defendant’s repeated commands to “freeze” and get down Mr. Hulsey dropped to the ground. Defendant walked over him and left with the stolen goods.

Defense was an alibi.

Here, defendant contends the evidence did not show armed robbery. This, he argues, because he had already stolen the goods when he displayed the weapon. He relies on State v. Samuel, 562 S.W.2d 733 [1, 2] (Mo.App.1978). That case, however, was based on an earlier statute, Section 560.120 RSMo. 1969, since repealed.

Here, defendant was charged and tried not under that statute but under the present statute, Section 569.020.1 RSMo. 1978, requiring evidence that defendant forcibly stole property while armed with a deadly weapon. By Section 569.010(l)(a) forcibly stealing means taking property by using or threatening to use physical force to overcome resistence either to the taking “or to the retention thereof immediately after the taking”.

The state’s evidence showed just that: Defendant retained the stolen property by immediate threats to use physical force. We deny defendant’s point relied on.

Affirmed.

REINHARD, P. J., and SNYDER and CRIST, JJ., concur.