State v. Ball

• Decision Date: 14 November 1960
• Docket Number: No. 47575,47575
• Citation: 91 A.L.R.2d 1042,339 S.W.2d 783
• Parties: STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
• Court: Missouri Supreme Court

Page 783

339 S.W.2d 783

91 A.L.R.2d 1042

STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.

No. 47575.

Supreme Court of Missouri, En Banc.

Nov. 14, 1960.

Dewey S. Godfrey, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also found prior felony convictions and, therefore, a mandatory sentence of life imprisonment was imposed. V.A.M.S. Secs. 560.120, 560.135, 556.280.

The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of October 15, 1958, two colored men, one of them tall and the other short, entered the Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent ten or fifteen minutes selecting and buying a cigarette lighter, he also talked about buying and looked at watches and rings. As the taller man looked at jewelry and made his purchase the shorter man looked in the cases and moved about in the store. Later in the day, about 5:50, as John Krekeler was placing rings and watches in the safe preparatory to closing the store two men entered, one of them tall and the other short, and Krekeler immediately recognized them as the two men who had been in the store at 2:30, especially the taller man. He recognized the taller man's narrow-brimmed, tall hat, brown jacket, gray stirt and particularly a scar on his face. The shorter man started to walk behind the counter and as Krekeler intercepted him he 'drew a long barreled blue .38 and stuck it in my face.' Both men followed Krekeler, the shorter man with the gun in 'his back,' directing him to the watch repair department and finally into the rest room in the rear of the store. He was told not to turn around and stood facing the wall. He could hear jewelry being dumped into a bag and the 'jingle' of the cash register. The two men left Krekeler in the rest room and after hearing the door slam he called the police. The two men had taken watches and rings of the stipulated value of $4,455.21 and $140 in cash from the register. Krekeler identified the appellant from pictures, and three weeks later, after his capture, in a hospital and upon the trial positively identified him as the taller of the two holdup men.

In his motion for a new trial one of the claims is that there was no direct evidence of an injury or any evidence to show that Krekeler was put 'in fear of some immediate injury to his person,' one of the essential elements of robbery in the first degree. V.A.M.S. Sec. 560.120. Krekeler did not affirmatively testify that he was in fear but he could well apprehend injury if he did not comply with their requests and in the circumstances the jury could reasonably find 'the fear' contemplated in the statute. 77 C.J.S. Robbery Sec. 16, p. 459; State v. Thompson Mo., 299 S.W.2d 468, 474. The element of fear being a reasonable inference from the evidence, the facts and circumstances support and warrant the finding of robbery in the first degree. State v. Eckenfels, Mo., 316 S.W.2d 532.

Another of the appellant's sufficiently preserved claims in his motion for a new trial (V.A.M.S. Sec. 547.030; Supreme Court Rule 27.20 V.A.M.R.) has to do with his arrest and the testimony of the two arresting officers. On November 4, 1958, about three weeks after the robbery, police officers in a squad car saw Ball walking on Easton Avenue. The officers stopped him, told him that they were officers and that he was under arrest. As officer Powell faced and searched Ball officer Ballard 'holstered' his gun and attempted 'to cuff' him. Ball shoved Powell over and ran down Easton Avenue, the officers ran after him, Powell being closest. Powell yelled, 'Halt Ball, you're under arrest,' and fired one shot high in the air but Ball continued running and Powell fired four more shots, two at his legs, one at his buttocks, and he finally fell from a bullet in his back. It is claimed that this evidence was not material or relevant, that it was too remote from the date of the robbery to indicate a consciousness of guilt and since it was of course prejuducial that he is entitled to a new trial. But unexplained flight and resisting arrest even thirty days after the supposed commission of a crime is a relevant circumstance (State v. Duncan, 336 Mo. 600, 611, 80 S.W.2d 147, 153), the remoteness of the flight goes to the weight of the evidence rather than to its admissibility. 20 Am.Jur., Sec. 293, p. 274.

When Ball was finally subdued and arrested the officers took from his person and impounded a brown felt hat, 'a brownish' windbreaker type jacket, trousers, gray shirt and shoes--these were exhibits one and two, Ball admitted that they belonged to him although his evidence tended show that he had purchased the jacket after October 15. In identifying Ball, in addition to the scar on his face, Krekeler was impressed with and remembered the brown ensemble, particularly the 'tall brown hat.' These items were of course relevant and admissible in evidence and there is no objection to them. State v. Johnson, Mo., 286 S.W.2d 787, 792. The appellant objects, however, in his motion for a new trial that a police officer was permitted to testify that $258.02 in currency and two pennies were taken from his person. It is said that the introduction of these exhibits was 'immaterial and irrelevant, neither tended to prove nor disprove any of the issues involved in this case; that said money as seized at the time of the arrest was neither identified by Mr. Krekeler nor by any other person...