Kayser v. United States

• Decision Date: 21 May 1968
• Docket Number: No. 18956.,18956.
• Citation: 394 F.2d 601
• Parties: Thomas Edward KAYSER and Ronald Mathes, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 601 (1968)

Thomas Edward KAYSER and Ronald Mathes, Appellants, v. UNITED STATES of America, Appellee.

No. 18956.

United States Court of Appeals Eighth Circuit.

May 21, 1968.

Robert D. Kingsland, Jefferson City, Mo., for appellants, Thomas P. Howe, Clayton, Mo., on the brief.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., for appellee, Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., on the brief.

Before MEHAFFY, GIBSON and HEANEY, Circuit Judges.

MEHAFFY, Circuit Judge.

Thomas Edward Kayser and Ronald Mathes, defendants, were tried to a jury and convicted under a single-count indictment charging that on December 2, 1966 they entered the Farmers Bank of Lohman in Lohman, Missouri, the deposits of which were insured by the Federal Deposit Insurance Corporation, with intent to commit a felony, larceny of money and property, a violation of 18 U.S.C. § 2113(a) and § 2113(f).¹

For reversal of their convictions, defendants assign as error that: (1) there was insufficient evidence to support the verdict; (2) the district court's rulings on the admissibility of certain evidence were erroneous because the arrest was illegal; and (3) the district court's rulings on the admissibility of certain testimony were erroneous and prejudicial.

We affirm the convictions.

Sufficiency of the Evidence.

Briefly summarized, the undisputed facts are that in the early morning hours of December 2, 1966, the Farmers Bank of Lohman was burglarized, the door to the bank, the vault door, and some of the safety deposit boxes being forced or cut open, and a substantial amount in cash, checks and bonds being stolen. Arnold Linsenbardt, who lived next door to the bank, saw someone in and around the bank at approximately 4:30 a. m. on December 2, 1966. He immediately had his sister notify the police. Linsenbardt also saw an acetylene torch assembly in front of the bank on the sidewalk. The police dispatcher of Jefferson City, Missouri notified the local police officers at 4:55 a. m. that someone had been seen in the bank and that there possibly had been a burglary. He directed Victor I. Phillips, a Jefferson City police officer, to proceed to the intersection of Highways C and 54, about 500 yards outside the city limits of Jefferson City, Missouri, to observe the traffic coming from Lohman, about 12 to 15 miles away, on highway C.

Officer Phillips arrived at this location about 5:00 a. m. and approximately five minutes later observed defendants' car, a 1956 Buick without lights on, coming from Lohman on highway C, turning right onto Ellis Boulevard, and then swerving into the wrong lane as it continued on highway 54. Officer Phillips pulled in behind the Buick, obtained its license number, and radioed the number to his dispatcher for a license ownership check. He then turned on his red light and siren and stopped the Buick inside the city limits. Before he got out of his car, he received an answer from the dispatcher that the license plate belonged to a 1957 Pontiac owned by Billy Mason of St. Louis, Missouri.

There were three men in the car — Kayser and Mathes, the defendants, and Roger Merton Bond. Officer Phillips observed defendant Mathes, who was driving the Buick, lean over to the right front seat of the car and then jump back. Mathes got out and Phillips ordered him to raise his hands. Phillips then directed the other two occupants of the Buick to get out. He observed that the men were dirty, had soot on their clothing, faces and hands and that the Buick had no key in the ignition. There were two .38 caliber revolvers in the glove compartment of the car which were not introduced into evidence. He asked Mathes whose car he was driving and Mathes answered that it had been loaned to him by a fellow named Billy, whose last name he did not know. All three men gave conflicting and evasive answers to questions of where they had been and where they were going. For these reasons, Phillips told the men they were under arrest for suspicion of auto theft and, with the assistance of another policeman, took the men to the Jefferson City jail and impounded the car.

An unauthorized search of the car was made by Missouri highway patrol sergeant who found bags of coins and other items belonging to the bank. This evidence found in the automobile was ordered suppressed by the court because no search warrant was obtained prior to the search and the search was not incident to the arrest.

Testimony reflected that the acetylene torch found in front of the bank had been rented in St. Louis by two men, one of whom was similar in appearance to one of the defendants. The men were in a Ford automobile, bearing the same license number as the Buick occupied by defendants at the time of their apprehension.

The bank reported a loss of $782.35 in checks and cash and $5900.00 in Series E Bonds, plus the contents of bank cashier Dawson's safety deposit box. Further evidence proved that Mathes had on two pairs of pants at the time of the arrest. Later, one of the pairs of pants, which had burned metal thereon, was found under a mattress in Mathes' cell by officers. The F.B.I. chemically analyzed the ashes found on the floor of the bank and found they were the ashes of metal of some sort. Carol Bond, wife of Roger Merton Bond, testified that her husband had sent her to the store to buy a pair of brown work gloves similar to the one found on December 2 in the bank. She also testified that Kayser, Mathes and their wives came to her house the night of December 1; that Kayser, Mathes and Bond, her husband, left her house together around 6:30 p. m., and that she heard Mathes tell her husband as they left that "there would be some money in it." Bond was also charged in this indictment but did not appear for the trial.

Defendants Kayser and Mathes did not offer any evidence or take the witness stand at the trial but rested their case after denial of their motion for a directed verdict of acquittal at the conclusion of the Government's case.

As a reviewing court, we must consider the issue of sufficiency of the evidence in the light most favorable to the verdict. Cave v. United States, 390 F.2d 58 (8th Cir. 1968). And we must accept as established all reasonable inferences to be derived from the testimony. Babb v. United States, 351 F.2d 863, 866 (8th Cir. 1965); Jaben v. United States, 349 F.2d 913, 917 (8th Cir. 1965).

The testimony here clearly points to the defendants as perpetrators of the burglary — their meeting at the Bond home in the late afternoon prior to the crime; their statements there and the purchase of work gloves for a codefendant by Mrs. Bond; the finding of a similar glove at the scene of the crime; the lack of fingerprints; the rental of the acetylene equipment, found in front of the bank, by men in a Ford automobile bearing the same license number as that on the Buick being driven by defendants at the time of their apprehension; the strong resemblance of one of the defendants to one of the men who rented the acetylene equipment; the time and place of defendants' apprehension as related to time of robbery and reporting of the burglary; the reckless and furtive manner in which defendants drove the Buick; the condition of their clothing upon apprehension; and the later hiding of a pair of trousers under defendant Mathes' mattress, the chemical analysis of which reflected that particles taken therefrom were similar to those found in the bank. In the light of the totality of this testimony, it cannot be said that the jury was unwarranted in drawing the reasonable inference that the defendants were guilty of the crime with which they were charged. It could hardly conclude otherwise, and we have no difficulty in holding that the evidence sufficed to support the verdict.

Evidentiary Rulings.

Defendants next contend that the testimony of arresting officer Victor Phillips concerning the physical appearance of the defendants and the condition of their clothing at the time of the arrest should have been suppressed because the arrest was unlawful and illegal, inasmuch as Phillips was an officer of a third class city and did not have the authority to make an arrest for a felony without a warrant, and, further, that he had no probable cause for the arrest.

Missouri law governs the authority of a policeman of cities of the third class. Section 85.561 V.A.M.S. clearly designates members of the police departments of third class cities as peace officers under subsection (1) thereof which provides:

"85.561. Police officers, conservators of peace-supervision-powers and duties (third class cities)

"1. In all third class cities the members of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city."

The Supreme Court of Missouri has defined the powers of a peace officer in the case of State v. Berstein, 372 S.W.2d 57, 59 (Mo.1963), cert. denied, 376 U.S. 953, 84 S.Ct. 970, 11 L.Ed.2d 972 (1964), as follows:

"It has long been the rule in this state, and many cases set it forth, that a peace officer may arrest without a warrant anyone who he has reasonable grounds to believe has committed a felony. (Citing cases.) The officer may arrest any person upon suspicion who is in fact guilty of a recent felony, whether the officer be advised of such felony or not. (Citing cases.)"

It is well settled that a peace officer has the authority to arrest without a warrant anyone who he has reasonable grounds to believe has committed a felony. The question of whether he had probable cause (reasonable grounds) to make the arrest without a warrant is determined by federal standards. If the arrest were made without probable cause, the evidence must be suppressed. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry v. United States, 361 U. S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Dupree v. United States, 380 F.2d 233 (8th Cir. 1967); Pigg v....