State v. Ward, 54480

Decision Date14 September 1970
Docket NumberNo. 1,No. 54480,54480,1
Citation457 S.W.2d 701
PartiesSTATE of Missouri, Respondent, v. Benjamin Henry WARD, Appellant
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St., Louis, for respondent.

Jerry S. Estes, Scott City, for appellant.

THOMAS F. McGUIRE, Special Judge.

Defendant was charged and convicted by a jury of first degree robbery by means of a dangerous and deadly weapon and having also been tried under Sec. 556.280, RSMo 1969, V.A.M.S., the second offender act, was sentenced to 25 years' imprisonment. He appeals.

From the evidence presented at the trial the jury could have found the occurrence of the following events:

About 9:30 a.m. on April 23, 1968, the appellant and his accomplice entered the store (with living quarters in the rear), owned and operated by V. S. Stephens, located a few miles from Sikeston, Missouri, pulling stockings or masks over their faces as they entered. Defendant carried a sawed-off shotgun and his accomplice carried a large wrench. Defendant demanded money of Stephens, knocked Mr. Stephens down and dragged him behind the grocery counter and held the shotgun on him. The accomplice seized Mrs. Stephens and forced her to the door of the Stephens' store to wave away a customer. Thereafter the accomplice brought her to the cash register, made Mrs. Stephens open the register, and took the money therefrom. The defendant's accomplice demanded keys to Mr. Stephens' car and proceeded to the living quarters behind the store portion of the building, where the accomplice seized a wallet from Mrs. Stephens' pocketbook, the keys to the Stephens' white Chevrolet, and two pistols, one German automatic pistol and a .22 caliber pistol. The defendant and his accomplice drove away in the Stephens' 1963 white Chevrolet and headed east on Highway 61. That morning Isaac Tate saw Ward, whom he knew previously, driving a 165 reddish Plymouth on Highway 61, followed by a 1963 white Chevrolet, Subsequently identified as the Stephens' automobile, driven by a colored person, but Mr. Tate did not recognize the driver. After the Chevrolet passed, Mr. Tate saw it turn over into a ditch on a curve and the driver ran to the Plymouth, driven by defendant, got in, and the Plymouth drove away.

Pursuant to a radio message, trooper Robert G. Mouser stopped a 1965 Plymouth, maroon color, near Perryville, Missouri, being driven by the defendant, with a negro passenger. Both defendant and his passenger were placed under arrest. The automobile was searched and found therein was a double-barreled, sawed-off shotgun, a .22 caliber pistol, a German automatic pistol, $165.95 in cash, four brown jersey gloves, four shotgun shells, a hand satchel, grease paint, some long strands of hair and some paint remover. The guns and the money were in the 'console' in the front seat. The two pistols were identified by Mr. Stephens as the pistols taken from him in the robbery. He also identified the shotgun as being the weapon used by the defendant in the robbery.

Defendant testified in his own defense and denied by involvement in the robbery. He was on parole from the Missouri penitentiary at the time he was arrested. He testified that the Plymouth car belonged to him and that he and his companion left St. Louis early in the morning of April 23, 1968, and drove to Cape Girardeau. They had approximately $160.00 between them which they placed in the console of the car for safe keeping. Along the way they picked up two soldiers and took them to Sikeston to catch a bus and were paid $10.00. Then they drove to an overpass near Benton, Missouri, where they experienced car trouble. While they were working on their automobile two colored persons approached in a 1963 red Dodge and for $25.00 sold defendant the weapons seized by trooper Mouser. He testified he decided to return to St. Louis from Cape Girardeau, as he did not have the necessary travel permit required by his parole. Further, that the army cap was left in his car by the two soldiers.

The defendant does not contest that the sufficiency of the evidence at the trial would sustain the conviction, but it raises four points of error. We shall consider the points in order raised.

The defendant contends that the trial court erred in admitting into evidence, over defendant's motion to suppress, a sawed-off shotgun, two pistols, gloves and $165.95 in currency, and other items seized in defendant's car, on the grounds that the arrest and the ensuing search were unlawful, in violation of his constitutional rights, alleging violation of the Fourth and Fourteenth Amendments of the U.S. Constitution and Sec. 14, Art. I, Missouri Constitution of 1945, V.A.M.S. We will detail the testimony presented on the motion to suppress.

Trooper Mouser of the Missouri Highway Patrol was on duty in Perry County, Missouri, on April 23, 1968, when he received a radio dispatch from headquarters at Poplar Bluff, to stop a 1963, or later, model Plymouth, maroon colored, sedan, operated by two colored subjects, for something that had happened at Sikeston. Other than information received in radio transmission, hereinafter referred to as the first transmission, the trooper had no personal knowledge of what had occurred in Sikeston. Thereafter, the trooper observed, intercepted and stopped a 1965 maroon Plymouth, two-door sedam, occupied by two negro subjects, driven by the defendant, near or at Route E and 61. After stopping the car, the trooper had defendant produce his driver's license and then called troop headquarters by radio (the second transmission) and found there had been an armed robbery committed at Sikeston by two colored subjects. This part of the information was lost in the first transmission.

As the trooper was having difficulty with radio reception at the Route E location, he requested the defendant to follow him back to a place, 3 miles south of Perryville, known as Twilight Inn, which was a higher area where better radio reception could be obtained. After arriving at Twilight Inn the trooper received a third radio transmission from his headquarters, which gave him additional information regarding the armed bobbery that had taken place in Sikeston, and more detailed information relating to the suspect maroon Plymouth vehicle, namely, that the vehicle had dual exhaust, magnesium wheels and stripes down the doors, which description matched defendant's vehicle, and that guns and currency had been taken in the robbery. Upon reception of this information from the third transmission, the defendant and his companion were placed under arrest and handcuffed by trooper Berger, who accompanied trooper Mouser. The troopers seized the keys from the vehicle, opened and searched the trunk, and then the whole motor vehicle.

Upon dismantling the console in the front seat, the troopers discovered a sawedoff shotgun, and one .22 caliber H. & R pistol, a 7.65 automatic pistol, four brown jersey gloves, $165.95 in change, a satchel, four shotgun shells, grease paint, long strands of hair and paint remover. These items were seized and confiscated as evidence. Trooper Mouser knew at the time of the arrest that coins and guns were taken in the robbery but had no knowledge that the particular items seized had been used or taken in the robbery until after the search had been completed. The trooper did not have any description of the dress of the occupants of the suspect motor vehicle prior to the arrest. The third radio transmission informed the trooper that guns and change (money) were taken in the armed robbery, and there were some army clothes in the car. In his search, the trooper discovered an army hat on a shelf above the back seat.

The radio operator at patrol headquarters in Poplar Bluff was on duty at approximately 9:30 a.m. on April 23, 1968 and transmitted by radio to trooper Mouser the information relating to the armed robbery at Sikeston, which the radio operator had received by radio, from the Sikeston police.

Deputy sheriff Ed Michael went to the scene of an armed robbery at Stephens' liquor store at Kluge's Hill, outside Sikeston, Missouri, in response to a phone call from Mrs. Stephens, at approximately 9:30 a.m. on April 23, 1968. Upon arriving at the scene, Mr. and Mrs. Stephens, the victims, gave him a description of the 'getaway car', a 1963 Chevrolet, four-door sedan. He followed the two tracks of the getaway car across the highway east on a ground road for about a quarter of a mile, where he found an overturned white Chevrolet, 1963 four-door sedan. At the scene of the overturned car was the aforementioned Isaac Tate, and several other persons.

Trooper Darnell of the highway patrol testified that he received a radio dispatch from troop headquarters that an armed robbery had occurred at Kluge's Hill and that the two colored subjects fled in Mr. Stephens' 1963 white Chevrolet from the robbery scene. Trooper Darnell stated that at no time did he see any automobile fitting the description of the defendant's at or near the scene of the robbery and did not receive any radio transmission of the same. As a result of his investigation he ascertained that a 1963 or later, maroon, Plymouth automobile with magnesium wheels and dual exhaust was involved in the incident and he relayed the information to headquarters.

Trooper Larry Strayhorn observed the appellant driving his maroon 1965 Plymouth on Highway I--55 at its intersection near Benton, Missouri, and turned his patrol vehicle and pursued the defendant's car in a northerly direction on Highway I--55. The trooper stated he had received a radio dispatch advising of an armed robbery at Kluge's Hill and that a 'red Plymouth had been involved and possibly two colored subjects involved'. The defendant was stopped at Cape Girardeau and searched, trooper advising defendant that he was looking for a shotgun. None being found the defendant was permitted to...

To continue reading

Request your trial
30 cases
  • State v. Johnson
    • United States
    • Missouri Court of Appeals
    • May 4, 1976
    ... ... See State v. Gant, 490 S.W.2d 46, 47(1) (Mo.1973); State v. Ward, 457 S.W.2d 701, 705(2--6) (Mo.1970); State v. Sampson, 408 S.W.2d 84, 86(1) (Mo.1966); State v. Henderson, 510 S.W.2d 813, 818(1) (Mo.App.1974) ... ...
  • State v. Granberry
    • United States
    • Missouri Court of Appeals
    • October 28, 1975
    ...by officers based upon information received over the police radio are valid, State v. Whorton, 487 S.W.2d 865 (Mo.1972); State v. Ward, 457 S.W.2d 701 (Mo.1970); State v. Craig, 406 S.W.2d 618 (Mo.1966); State v. Morris, 522 S.W.2d 93 (Mo.App.1975); State v. Bradley, 515 S.W.2d 826 (Mo.App.......
  • U.S. v. Rose
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 9, 1976
    ...86 S.Ct. 138, 15 L.Ed.2d 105 (1965); State v. Owens, 486 S.W.2d 462 (Mo.1972); State v. Martin,465 S.W.2d 594 (Mo.1971); State v. Ward, 457 S.W.2d 701 (Mo.1970). That power is not limited to arrests made in emergencies or exigent circumstances. United States v. Watson, supra, 423 U.S. at 41......
  • State v. Vineyard
    • United States
    • Missouri Court of Appeals
    • July 23, 1973
    ...(W.D.Mo.1971). Since that information was reliable it did not lose its reliability when it was transmitted via radio (State v. Ward, 457 S.W.2d 701, 706 (Mo.1970)) by the police dispatcher receiving it to the police officers who effected the arrest. ". . . (W)here reliable information is or......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT