Brian Keith Moore, convicted of first degree murder and attempted robbery in the first degree by means of a dangerous and deadly weapon, has appealed contending the trial court erred (1) in failing to discharge him because his warrantless arrest was without probable cause, (2) in failing to suppress certain evidence and identification testimony allegedly procured by illegal means, (3) in failing to instruct the jury on second degree murder and manslaughter, and (4) in submitting the case under the felony-murder rule of § 559.010, RSMo 1969, 1 because the bystander killed during the attempted robbery in which appellant participated was shot not by appellant but by another bystander. The Court of Appeals, affirming the robbery conviction, denied appellant’s first three contentions but transferred the case, after opinion, under Rule 83.02 for our consideration of point four. Portions of the Court of Appeals’ opinion are incorporated without quotation marks. Deciding the cause as though here on original appeal, Rule 83.09, art. V, § 10, Constitution of Missouri, we affirm.
During the late еvening of July 28, 1975, appellant and two other men entered the “Emergency Room Lounge,” a tavern located in the City of St. Louis, and after positioning themselves at various places in the room, appellant, carrying a shotgun, announced a “holdup.” One accomplice, Ross Hogan, drew a pistol and fired at Albert “Rip” Williams, a customer sitting in a booth, as Williams was drawing a pistol from his waistband. Hogan’s shot missed Williams but one of two return shots fired by Williams struck Ross Hogan. This was followed by a blast from appellant’s shotgun which struck Williams on the head and shoulder knocking him to the floor. In that position Williams saw a man’s foot, and believing it belonged to one of the robbers, he shot it.
As the robbers withdrew from the aborted robbery through thе front door they fired several more shots into the barroom, one of which wounded Williams again. After they had fled, it was discovered that two other customers had been caught in the gunfire. One received a “shotgun burn” and the other, Lawrence Meadows, had been fatally wounded in the head by two bullets. At trial, a police ballistics expert identified the fatal bullet as coming from Williams’ gun.
Two days after the incident, two detectives contacted an informant with whom they had never worked, but about whom they were familiar. The informant told the detectives that he had learned from a relative of appellant that the perpetrators of the attempted robbery were Ross Hogan, a man named Carl, and aрpellant. The police were aware of Hogan’s involvement, as he had been arrested and was hospitalized for treatment of shotgun wounds. The infor *749 mant advised the police that appellant had been shot in the right foot and was on crutches; that he could be found in either the 4100 block of Ashland Avenue or the 4300 block of Labadie. The same day they received the information, the two detectives saw appellant in the 4100 block of Ashland with a bandaged right foot and walking with the aid of crutches. When approached by the officers, appellant, who had no identification papers, seemed nervous and gave the alias of Joseph Madison, stating that he was 17 years old. He attributed his injury to having stepped on a rusty nail but when the police removed his shoe they noticed two wounds, one on each side of his ankle. Appellant was arrested and taken to a hospital for treatment. His shoe, held for evidence, was punctured in the places corresponding with his ankle wounds.
A physician at the hospital confirmed that аppellant’s ankle injury was a gunshot wound and appellant then gave his correct name and admitted his participation in the robbery but denied any shooting. When police learned from his mother that appellant was 16 years of age, he was immediately taken to the Juvenile Detention Center. Appellant was subsequently placed in a lineuр and identified by two witnesses as one of the robbers.
Appellant initially argues that the trial court erred in failing to “discharge” him by reason of the State’s failure to establish probable cause for his warrantless arrest. This point is without merit. An illegal arrest does not divest the trial court of jurisdiction to try the case.
Watson v. State,
Appellant’s second contention is that certain physical evidence (his shoe with the bullet punctures) and identification testimоny should have been suppressed as having been obtained in connection with the allegedly illegal arrest. This requires a determination of whether there was probable cause for appellant’s arrest. “Probable cause” is said to exist where the facts and circumstances within the officers’ knowledge and of which they have reliable and trustworthy information would warrant a man of reasonable caution to believe that the person being arrested had committed the offense for which he has been placed in custody.
Ker v. California,
Appellant argues that there was no reasonable ground for his warrantless arrest, particularly since the arresting officer had not personally known the informаnt nor had personal experience with him. We disagree. As stated in
State v. Wiley,
“The true inquiry therefore is whether the informant’s present information is reliable. As long as the corroboration of the information through other sources, even though the matters are innocuous, reduces thе chances of a ‘reckless or prevaricating tale,’ the information, even though hearsay, may form the basis of probable cause for an arrest.”
Under the circumstances of this case, we have no doubt that probable cause existed for appellant’s arrest. The arresting officers had been assigned the specific task of investigating the crime which had occurred two days earlier involving three youths, one of whom had been shot in the foot and had been observed limping from the scene of the crime. Another of the robbers was then in police custody. The informant had dealt with police previously, albeit not the particular arresting officers, but they were aware of his past contributions. The informant, attributing his information to a relative of appellant, advised the police that appellant had been shot in
*750
the right foot, was on crutches and could be found in the 4100 block of Ashland. And exactly as told, the police found appellant, complete with crutches and bandaged right foot, in the 4100 block of Ashland. He fit the general description of one of the robbers and gave an implausible explanation for his injury. The information accurately detailed by the informant was fully corroborated by the personal observation of the arresting officers. The accusation of appellant is thus readily distinguished from the rumor or vague circumstances decried in
Wong Sun v. United States,
Appellant also asserts
State v. Wade,
Appellant cites
State v. Ross,
Apрellant next urges that the trial court erred in failing to instruct the jury on second degree murder and manslaughter. He asserts that felony-murder under the then applicable murder statute, § 559.010, RSMo 1969, necessarily embodied the lesser homicides.
The submission of lesser homicides under an information drawn as here under § 559.-010 was at the time of appellant’s trial governed by this Court’s pattern instructions approved January 1, 1975, effective March 1, 1975. 2 Though the charge was made under the general first degree murder section, 559.010, only felony-murder was submitted to the jury, not conventional first degree murder. Caveat “a” in the Notes on Use to the form of MAI-CR 6.02 then in effect stated,
Where felony-murder ... is the only murder submitted . . . lesser offense instructions will not be given automatically. Ordinarily, where there is sufficient evidence to warrant the giving of a felony murder instruction, there will be no evidence to support the submission of a lesser offense.
There may be exceptional cases, however, where there is evidence warranting a finding that the murder was not committed in the perpetration of or attempt to commit the felony relied upon to authorize а felony-murder instruction . But in the absence of evidence to justify it a lesser offense instruction should not be given where felony-murder alone is submitted. State v. Ford,495 S.W.2d 408 (Mo.1975). (Citations omitted and emphasis in original.)
See also State v. Stapleton,
Finally appellant contends, “Defendant’s actions do not fulfill the requirements of V.A.M.S. 559.010 in that a bullet from defendant’s gun did not take the victim’s life, and in order to be guilty of homicide, the act of homicide must be done by defendant,” and concludes outright reversal is required. Stated otherwise, appellant claims that felony-murder requires a finding that he or one of his accomplices fired the shot that killed Meadows. This Court considered the felony-murder rule under facts similar to the case at bar in
State v. Majors,
More recently, in
State v. Glenn,
It is well established in this state that any person involved in the underlying felony may be held accountable for every homicide committed in the perpetration of the felony even though the fatal act was committed by a co-felon.
State v. Paxton,
that when the homicide is within the res gestae of the initial crime and is an emanation thereof, it is committed in the perpetration of that crime in the statutory sense.
See also State
v.
Messino,
In
State v. Glover,
*752 [E]ven though the homicide be unintentional yet, if it be committed in the course of perpеtrating the felony, and is a natural and proximate result thereof, such as the defendant reasonably was bound to anticipate — and therefore especially where the felony is dangerous and betokens a reckless disregard of human life — the homicide will be first degree murder under the statute. (Emphasis ours.)
The Illinois Supreme Court adopted the foreseeability conceрt in
People v. Hickman,
It reasonably might be anticipated that an attempted robbery would meet with resistance during which the viсtim might be shot either by himself or some one else in attempting to prevent the robbery and those attempting to perpetrate the robbery would be guilty of murder. (Emphasis ours.)
In Payne, the evidence was inconclusive as to whether the deceased, a robbery victim, was shot by his brother, also a robbery victim, or by one of the defendant’s accomplices.
On facts similar to
Hickman,
thе Michigan courts have also affirmed first degree murder convictions.
People v. Podolski,
When a defendant deliberately engenders an affray, deliberately using therein a lethal weapon, it must be considered to be within his intent that death should result from the affray as a natural and probable consequence of his acts, where the death is directly attributable to the affray and not resulting from some independеnt intervening cause. (Emphasis ours.)
In
Johnson v. State,
Similarly a Texas court in
Miers v. State,
In the case аt bar, appellant and his accomplices entered the tavern armed with a shotgun and a pistol with the intent to rob the bartender. This occurred at a time when it was open for business and customers were present. Witnessing these facts and the announcement of a holdup, Williams pulled a pistol from his waistband and when Hogan fired at him, he returned the fire. It was reasonably foreseeable that the robbery attempt would meet resistance. This set into motion the chain of events which caused the death of Lawrence Meadows. Whether the fatal act was done by the defendant, an accomplice, another victim, or a bystander is, under the facts here, not controlling. The significant faсtor is whether the death was the natural and proximate result of the acts of the appellant or of an accomplice. Of course, an independent intervening cause might relieve appellant of criminal responsibility for the killing. But in this case the act of Williams was not an independent act because it was the attempted robbery by the appellant and his accomplices which provoked Williams to pull the pistol he was carrying from his waistband and it was the *753 shot fired from one of the felons which brought Williams’ return fire.
Insofar as Majors and Glenn are inconsistent with this opinion, they must no longer be followed. The judgment of the circuit court of the City of St. Louis is affirmed.
Notes
. Section 559.010 was repealed effective after the commission of the homicide at issue and controlled the prosecution of Moore’s case. Laws 1975, p. 408.
. Although appellant’s trial took place after revisions in the MAI-CR 6.00 series effective September 28, 1975, those revisions applied only to trials for homicides committed on or after that date in order to conform with the 1975 legislative revisions to the homicide statutes. Laws 1975, p. 411.