Dеfendant was found guilty by a jury of first degree robbery by means of a dangerous and deadly weapon; upon a finding by the court of a prior conviction of a felony, he was sentenced to a term of twenty years in the penitentiary. On this appeal we consider the assignments of a detailed motion for new trial, in so far as those assignments are sufficient under Rule 27.20, V.A.M.R. We have so frequently quoted insufficient assignments, with citations in support of our rulings, that we dо not propose to encumber this opinion with such quotations or citations. The assignments not specifically referred to herein are denied for insufficiency.
The evidence for the State fairly showed the facts now recited. John Leuther owned and operated a market at the corner of 39th and Shenandoah in the City of St. Louis known as the “Tom Boy Market.” On Friday evening, December 9, 1960, he and his grocery manager, Agnes Shadley, closed the place at about 8:00 p. m., locked the front door as they departed through it, and proceeded together along the 39th Street side of the building until they reached the west side of a parking lot in the rear. There they separated, Agnes walking on south to her car, while Leuther entered the parking lot and walked east to his car parked near the southeast corner. The lot was well illuminated by a large light. As he approached his car he heard footsteps behind him, so he got in his car rather quickly and shut and locked the door. Immediately a man appeared at the window (later identified as Roy Russell Cook, indicted with this defendant), pointed a .45 caliber revolver at Leuther and said: “You *106 are a wise son-of-a-bitch, aren’t you? I am going to kill you.” After this initial greeting, and other remarks in similar vein, he instructed Leuther to hand him his pocketbook-and get out on the other side; Leuther complied, and as he did so, another man, positively identified at the trial and previously as the defendant Henry Allen Redding, came up carrying a .45 caliber automatic pistol which he kept continuously pointed at Leuther. Cook then went through Leuther’s clothes, took everything but his car keys, and then ordered him back to the store. The two men then conducted Leuther back to the store where they required him to open the front doоr and then lock it behind them; inside, they forced him to unlock the safe; at this point the defendant, with the pistol and at Cook’s direction, took Leuther to the back of the store, where they waited. Cook soon appeared with the contents of the safe in four canvas bank bags, and together they took Leuther into the meat cutting room, where the defendant continued to hold his pistol “on me.” At that point Cook again threatened to kill thе victim and cocked and uncocked his revolver several times while held at his “belly”; defendant, according to Leuther, protested the idea of killing him. Finally they tied Leuther to the door of the cooler and left through the back door of the market. Leuther eventually freed himself, went to a nearby store and had the police called. The evidence showed that $7,820.75 was taken, of which about $620 was in checks and the balance in cash. Two thousand dollars of the money was in new ten-dollar bills, and another $2,000 in used ten-dollar bills, all of which had just been procured from the bank. Approximately $150 was taken from Leuther’s billfold. The men also took four books of American Express money order forms from the safe; the market was a substation for the sale of money orders. The men wore no masks, and Leuther testified that he had ample opportunity to look at the defendant.
Defendant was arrested in his apartment or “flat” at about 8:45 p. m. on December 13, four days after the robbery. At that time the officers found and took a loaded .45 caliber revolver, a loaded .45 automatic pistol, extra ammunition, $400 in ten-dollar bills (of which 21 were new with consecutive serial numbers) and four books of blank American Express money order forms. These things were all marked by the officers at the time and produced at the trial. The details of the arrest will be considered further a little later.
Defendant took the stand and testified that he was in East St. Louis gambling at the time of the robbery; and that he won $500-$600, thus accounting for the money found. He also testified that he had bought the two guns at about 6:00 o’clock on a morning two or three days after the robbery, on the street at Sixth and Market from a man whom he had never seen before ; he further testified that the books of money order blanks were later found by him in the paper sack in which the guns were delivered to him. He denied the robbery. He admitted a previous conviction for statutory rape, a sentence of three years and the serving of the term in the Algoa Intermediate Reformatory.
Defendant’s counsel filed a motion to suppress evidence of the property found in his apartment. Our discussion of the question so raised will also dispose of the same question raised at the triаl and in the claim of error in permitting the officers to testify to what they found in the apartment. At the hearing before trial evidence was introduced showing, in substance: that the officers who made the arrest had been assigned to the investigation of this robbery; they had heard the radio report of the robbery and had read the written police report, both of which included descriptions of the robbers, and they had noted that one descriptiоn fitted this defendant; they had seen defendant and Cook driving around the neighborhood at various times of the *107 day and night, and had noted they were apparently not working; they had learned that after the time of the robbery defendant had traded his car in on a newer one and paid $400 in cash in new ten-dollar bills; on the evening of the arrest they had seen him carrying a TV set out of a store and loading it ■ in the trank of his car; an informer had told two of these officers, after the robbery, that Cook and Redding were spending a lot of money, had bought a car, clothes and luggage, had showed a handful of ten-dollar bills, and that there were money orders at defendant’s home. On the evening of December 13, 1960, two of these officers who were on duty called the third who was off duty, and told him that with the information they had they thought they should make the arrest, whereupon this officer met the other two; one of the three testified that the calling officer added that they should make the arrest “before we lose the evidence.” The officers proceeded to the rear door of defendant’s apartment and knocked; a man said “Who’s there,” and one of the officers answered— “police officers.” There were brief remarks about defendant’s car in the alley, defendant came to the door and opened it, and the officеrs entered the kitchen; two of the officers were in uniform. One of them immediately told defendant that he was under arrest for the robbery of the Tom Boy Market; he replied, in effect, that they were crazy. The officers searched him for weapons, handcuffed him and then one of the officers told him that they were going to search the house; he replied, — “Go ahead, I have nothing to hide.” In a large, open closet opening off thе kitchen, the officers found the four books of money order blanks in the top drawer of a chest of drawers; in the pockets of defendant’s overcoat they found the two loaded guns; and in a woman’s coat they found the forty ten-dollar bills. In the kitchen cabinet they found additional ammunition for the automatic.
Defendant complains here that the arrest was delayed so that evidence might be seized, and that the search extended bеyond the room in which the arrest was made; also, that there were no “proper grounds” for the arrest. Admittedly, there was no warrant for the arrest or the search. Defendant has pleaded § IS of Article 1 of the Missouri Constitution, V.A. M.S. and the 14th Amendment to the United States Constitution. We rule, first, that the arrest was lawful. The mere recital of the information which these officers had is sufficient to show that they had reasonable cause to suspect that defendant was guilty of a felony,- — namely, this specific robbery. See, generally, State v. Cantrell, Mo., 310 S.W .2d 866; State v. Edwards, Mo.,
As an incident to a lawful arrest, officers have the right to make a search and to take articles which have evidentiary value in connection with the crime for which the suspect is arrested. State v. Turner,
Defendant complains of the refusal of the court to require one of the officers to state the name of the рolice informer from whom they received information. This was a matter resting largely in the discretion of the trial court, as recently ruled in State v. Edwards, Mo.,
Complaint is also made that defendant was not given twenty peremptory challenges to the jury panel instead of twelve, because he was charged with an offense “which is punishable by the death penalty, V.A.M.S. 560.135.” Section 546.-180, subd. 2(1) (a) RSMo 1959, V.A.M.S.
1
(applicable to cities of over 100,000) provides : “If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty, and no more; * * Here the State expressly waived the death penalty during the voir dire, as it may legally do. State v. Garrett, Mo.,
It is suggested that the sentence imposed by the court here under the Prior Conviction Act, now § 556.280, was improper because defendant had merely served a sentence in the Algoa Reformatory, and because the coрy of the record produced did not bear the seal of that institution. The prior conviction was for statutory rape, an offense specifically
punishable
by confinement in the penitentiary, § 559.260. It is only necessary that the prior offense be so punishable. This point has been specifically ruled in State v. Nolan, Mo.,
The contention that photographs of the premises were improperly admitted because taken under different conditions is denied. The contention is obviously based on the fact that the photograрhs were improper because they were taken in daylight. Such objections merely go to the weight of the evidence and any differences in conditions may be developed in the evidence. State v. McGee,
Claim of error is also made in that Mr. Leuther was allegedly not “qualified” to testify that the revolver and pistоl produced were the “same guns,” and that his evidence was hearsay and without proper foundation. Leuther had an opportunity to observe the guns over a rather considerable and important period of time. There is no question of hearsay. He said as to Cook’s revolver: “It’s the same gun that Cook held on me all the time.” As to the automatic he said: “That’s * * * the one that Redding carried. It’s the same gun.” Then, on a question by the State’s аttorney asking if the latter was the same “type” of gun, he said “Yes.” This question and answer did not destroy the effect of his positive identification. The weight of this evidence and the “qualification” of the witness (if such a question there be) were for the jury. The testimony was admissible and it was certainly sufficient to render the exhibits admissible. Less identification than this has been held sufficient. State v. Johnson, Mo.,
During the cross-examination of Mr. Leuther counsel moved for the prоduction of any statements taken by the police from him. This request was denied, the prosecutor stating that he had no statement which he intended to introduce in evidence, and that any such statements would be confidential. Error is assigned in that defendant was thus supposedly deprived of the full right of cross-examination. We are unable to tell from the motion for new trial or the oral request whether reliance was placed on § 510.030 appеaring in our Civil Procedure, or on Criminal Rule 25.19. The latter presupposes the issuance of a subpoena duces tecum, and none was shown here. In State v. Kelton, Mo.,
*110
Edward Kelly, a' special agent of the 'American Express Company, identified certain original “trust receipts” of that Company which showed the delivery to Leuther’s- Market (as a siib-agent) of the specific books of money order blanks found-in defendant’s apartment, and later produced at the trial. Defendant’s counsel objected to Mr. Kelly’s qualifications and the objection of hearsay has been preserved in the motion for a new trial. From Kelly’s testimony it may reasonably be inferred that 'the investigation by his company of the stolen money order- blanks had been assigned to him. 'He testified: that he was required to be familiar with all phases of the business, and that he was an1 “inspector of everything that happens in the particular office that the Tom Boy Market was a sub-agency; that when mоney orders 'were delivered to such an agency receipts were taken, identifying the particular money orders; that the exhibits in question were such “trust receipts,”' and that each receipt here bore the agency number 958. The police returned the stolen' books to Kelly. This witness also identified the books themselves, but these were specifically identified by one of the officers and Kelly’s identification could only have been сumulative. Our statute, § 490.680, provides for the identification of such records by “the custodian or other qualified witness,” and by its very terms leaves considerable discretion in the trial court regarding the qualifications of the witness and “the sources of information.” Rossomanno v. Laclede Cab Co., Mo.,
The only assignment regarding instructions which could possibly be considered as specific within our rule is the one addressed to the State’s Instruction No. 1. This very generally followed the wording of the indictment and required the jury to find that defendant “by means of a dangerous and deadly weapon,” a pistol, feloni-ously made an assault upon Leuther, put him in fear' of “immediate injury to his' person,” and by force and violence took $7,323 in money and $700 in checks, “all of the'money, goods and property of the said John Leuther” from his person; in his presence and against his will, with force and violence and did feloniously rob, steal' and carry away the property with the felonious intent to deprive the owner théreof.' This instruction-is said to be confusing and difficult to follow, with the elements of the Crime not “spelled out.” The language is somewhat antiquated, but the instruction contains all the elements of the crime charged (§ 560.135) and the jury could not well have been misled. Similar instructions were approved in State v. Baldwin, Mo.,
The assignment that the motions for a judgment of acquittal should have *111 been sustained is completely refuted by the mere recital of the State’s evidence.
A point is made on the State’s closing argument. Mr. Leuther had testified that he saw certain policemen “dust around the safe and cooler door” for fingerprints, but that he did not know whether they found any. Only one brief excerpt from all the arguments is set out in the transcript. It is as follows: “ * * * Now, as to testimony that there were no fingerprints: and why? That is what is known as negative evidence. And Mr. Baron would have objected to it had—
“MR. BARON: Obj ection, Your Honor. He is talking about testimony that would have been, and said I would have objected to it. I might have welcomed it.
“THE COURT: Overruled.
“MR. BANTLE: That is what is callеd negative evidence, and that we aren’t permitted to produce. Consequently, it wasn’t a matter that could have been testified to by anybody. If I had been able to produce such evidence, I would have been happy to produce it for you.” It seems probable that these remarks were retaliatory and directly related to some argument made by defendant’s counsel: If so, they would not constitute error. But, in any event, the rеmarks could not have been prejudicial. With all the direct evidence produced here, the question of fingerprints was more or less of a “red herring,” and the jury could hardly have thought otherwise.
The fact that the verdict found defendant guilty as charged “on information,” instead of on indictment, was wholly immaterial and in no way impaired the validity of the verdict. State v. Taylor,
We find no prejudicial error in those parts of the record which we examine independently of a motion for new trial under Rule 28.02. The judgment is affirmed.
Notes
. All statutory citations will be to that revision.