# Sours v. State

> Supreme Court of Missouri · January 15, 1980 · 593 S.W.2d 208

URL: https://www.frixlaw.com/law-library/cases/9673134

## Case

- **Full name:** William Scott SOURS, Appellant, v. STATE of Missouri, Respondent
- **Court:** Supreme Court of Missouri
- **Decided:** January 15, 1980
- **Citations:** 593 S.W.2d 208; 1980 Mo. LEXIS 441
- **Precedential status:** Published
- **Opinion:** Dissent by Rendlen
- **Judges:** Welliver, Bardgett, Seiler, Morgan, Higgins, Rendlen, Donnelly
- **Cited by:** 138 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Missouri v. Hunter, 459 U.S. 359 (1983).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673134

## Opinion text

RENDLEN, Judge,
dissenting.
The principal opinion overrules State v. Treadway, 558 S.W.2d 646 (Mo.1977). In Treadway this Court upheld defendant’s conviction under § 560.120, RSMo 1969, the then applicable first degree robbery statute, and a conviction under § 559.225, RSMo Supp. 1976, the then applicable armed criminal action statute. As stated in Treadway at 652 “[t]he two offenses do not overlap.” After pointing out that first degree robbery (under § 560.120) requires proof only of the taking of property by means of violence or fear whereas armed criminal action requires the proof of the use of a dangerous or deadly weapon during the commission of a felony, the Court went on to state, p. 652, “The use of a weapon is not an element of first degree robbery, although it may factually be part of the transaction.” The Court then concluded, “Since the two offenses are not the same in [the] law, appellant’s double jeopardy protection has not been abrogated.” Stated otherwise the crime under § 560.120 includes the statutory element of putting the victim in féar and the use of a dangerous or deadly weapon is not a necessary part of the crime. The fear may be produced by means other than a dangerous and deadly weapon and thus a statutory element occurs under § 560.120 which is separate and distinct from and does not occur in § 559.225 (armed criminal action). On the other hand, § 559.225 necessarily contains an element, i. e., the use of a dangerous and deadly weapon not included in § 560.120 and if the underlying crime is robbery, that there be “fear induced by a dangerous and deadly weapon” and by no other means. This then is another distinguishing element of § 559.225 not present in § 560.120. In sum, each crime contains statutory elements not included in the other and by the “Bloekburger test” discussed at length in the majority, the crimes are separate and distinct and a prosecution for both is not barred by double jeopardy considerations. To the extent that the majority opinion holds otherwise and overrules our decision in Treadway I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673134. Public record. Not legal advice.