LOPEZ V.
HEESEN while hunting and that as a proximate result of the joint and concurrent negligence of
365 P.2d 448 (1961)
69 N.M. 206
Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and
Company, a corporation, Defendants-Appellees.
No. 6760.
Supreme Court of New Mexico.
August 22, 1961.
Rehearing Denied October 31, 1961.
*449 Smith, Kiker & Kitts, and Ramon Lopez, Albuquerque, for appellant.
Sutin & Jones, Albuquerque, David R. Hardy, Kansas City, Mo., for appellees.
CHAVEZ, Justice.
Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen,
alleging that on October 15, 1958, Heesen unlawfully, violently, maliciously and
feloniously assaulted and shot appellant with a shotgun, thereby inflicting dangerous
and painful wounds and injuries to appellant, causing him great bodily and mental pain
and anguish, all to his damage in the total sum of $80,000, which included $25,000
punitive damages.
Appellee, Heesen, answered denying the allegations of the complaint and thereafter
appellant filed a demand for jury trial. By stipulation of appellant and appellee,
Heesen, appellee, Sears, Roebuck and Company was joined as a party-defendant.
Appellee, Sears, Roebuck and Company, will hereinafter be referred to as appellee
"Sears." Thereafter two amended complaints followed before the third amended
complaint was filed, alleging that appellee, Sears, was engaged in the design and
manufacture of hunting firearms, including the Higgins Model 51, Cal. 30.06 rifle, and
was also engaged in the selling of firearms in Albuquerque.
It was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen,
one of said Higgins Model 51 hunting rifles; that said rifle was negligently designed
or manufactured by appellee, Sears, in that the safety mechanism moved readily and
in a dangerous manner from a "safe" to a "fire" position. In addition, it was alleged
that the rifle in this dangerous condition known to appellee, Sears, was sold to appellee,
Heesen, with the knowledge that it would be used for hunting purposes and that
appellee, Sears, negligently failed to warn appellee, Heesen, of the dangerous and
defective condition of the rifle.
The complaint further alleged that on the afternoon of October 15, 1958, in Colfax
County, New Mexico, appellee, Heesen, negligently permitted the rifle to discharge
both appellees, appellant sustained a severe and disabling wound and injury to his
chest, requiring hospital and surgical care. Appellant demanded damages in the
amount of $55,000 against both appellees, jointly and severally.
Appellee, Heesen, answered denying the allegations of the third amended complaint.
Appellee, Sears, also answered denying the allegations and raising additional
affirmative defenses, to-wit: That appellant's injuries were caused by an unavoidable
accident; that the negligence of appellee, Heesen, was the sole cause thereof; that the
rifle involved was of a recognized quality and of proper design and functioned
properly by all commercial sporting arms standards when used with reasonable care;
that rifles of this type had been manufactured by the millions and used by hunters
generally and by the government of the United States and foreign countries; that the
safety mechanism and its qualities were patent and obvious, and had been seen and
inspected by Heesen prior to the accident; that Heesen knew of the tendency of the
safety mechanism to come off safety to "fire" position while hunting in heavy brush
and climbing up and down mountain *450 terrain when pressure was applied to the
safety mechanism; that appellee, Sears, had no duty to warn appellee, Heesen, of the
method of operation and use of the safety mechanism; and that it could not have been
foreseen that appellee, Heesen, would continue to hunt in heavy brush and
mountainous terrain knowing that the safety mechanism would come off safety
without taking proper precautions to handle the rifle in a reasonable manner.
The jury returned its verdict finding the issues for both appellees and against appellant.
Judgment was entered for appellees and this appeal followed. Appellant abandoned
any contention that the verdict in favor of Heesen was erroneous and this appeal
concerns only appellee, Sears.
The facts are substantially as follows. In the early afternoon of October 14, 1958,
appellee, Heesen, an Air Force officer, purchased a J.C. Higgins Model 51, 30.06 rifle
from the store of appellee, Sears. Said rifle has a bolt action known more particularly
as a "Mauser type action" with which Heesen was familar. Heesen, although
experienced in hunting, was not familiar with the Higgins Model 51 and had never
used such a rifle. The safety mechanism on the rifle is what is known as a "Class 1"
safety, meaning that it interrupts the firing pin directly. The safety lever is mounted on
the left side of the gun to the rear of the bolt assembly. It is a two-position safety with
the action locked when the safety lever is in a raised position. To release the safety,
you push the safety lever to the left and down to a horizontal position and the gun is
then ready to fire.
Heesen first telephoned appellee's store about obtaining a Higgins rifle which they
advertised. Later he went to appellee's store and purchased the rifle. At the time of the
purchase Heesen was given an instruction pamphlet which he read. Said pamphlet
explained the composition of the rifle and gave operating instructions, including the
method to be pursued to make the gun "safe," i.e., how the gun is put in a safety
position and how it may be released and have the gun ready to fire. It appears that
Heesen first talked to a salesman, John C. Villella, over the telephone and requested
that the rifle be put aside for him. However, another salesman, Roger Perkins made
the actual transfer of the rifle to Heesen. Perkins' whereabouts is unknown and nothing
is known as to Perkins' conversation with Heesen. Villella did not give Heesen any
instructions as to the use of the safety mechanism. There was a telescopic sight
advertised for sale for use with this rifle but Heesen did not care for the sight and did
not purchase it.
Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an
area known as Ute Park near the town of Eagle Nest in Colfax County. He arrived at
Ute Park that night and began hunting the next morning on October 15, 1958. Heesen
hunted without success and had seen no game up until the time his gun discharged and
appellant was wounded shortly after 3:00 P.M.
When Heesen commenced hunting that morning he placed a live cartridge in the
chamber and placed the gun on safety position. He traveled a good deal during the
hours before the shooting and on one or two occasions he discovered the gun off safety
position. This was when he had come down a long hill covered with rocks and boulders
and he assumed that he had hit it against a rock or something. Thereafter Heesen
checked the safety position on frequent occasions. Heesen carried the gun on his right
shoulder with the sling at port arms or ready position, with his left hand on the forearm
of the gun and his right hand on the stock, and by the forearm of the gun with his right
hand at the "balance" of the rifle. In each of these positions the safety lever was toward
Heesen's body or right leg. Heesen changed the position in which he carried the rifle
during the course of his walking up and down mountain slopes. He also carried it in a
different position in going through brush and in climbing or stepping upon rocks.
Although the gun moved from "safe" to "fire" position at least twice during the hours
before *451 the shooting, Heesen was not aware of this occurrence. Shortly before the
shooting, Heesen had been sitting on a knoll for about twenty minutes checking the
wind and watching for deer. While sitting on the knoll he checked or observed the
safety lever on the rifle several times and it was on safety position. At a time not more
than ten minutes before the shooting he left the knoll and started down a draw which
ran in a southerly or southwesterly direction. Heesen was not sure whether he checked
the safety lever after he left the knoll and he was carrying the gun on his shoulder by
the sling as he proceeded down the draw toward the point where the gun discharged.
At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards
away from the point where Heesen's gun subsequently discharged. Appellant in the
company of two hunting companions, Bennie Aragon and Ramon Barela, had gone
from Albuquerque to Ute Park on the afternoon of October 14, 1958, and after
spending the night in the area, commenced hunting on the morning of October 15th,
the first day of deer season. After hunting all morning and again in the early afternoon,
the party stopped to rest at the location where appellant was shot. It was then about
3:00 P.M. and appellant, dressed in bright hunting clothes, was sitting about twenty
feet away from his two companions and scanning the area for game. After sitting there
about four or five minutes, appellant observed an object to his right which was moving
but which he could not identify. This was shortly before the shooting.
As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a
"rustle" and saw a deer go between some trees to the left of his line of travel about 50
to 100 yards away. The deer, when observed, was in a direction about 80 or 90 degrees
to the left of where appellant was sitting and Heesen did not observe appellant or his
companions before the shooting. At about this time Heesen removed the rifle from the
sling on his shoulder and held it by his right hand at or near the balance position of the
weapon. He then came to a dead log in his path which was about eight or ten inches in
diameter and was lying horizontally a foot or less off the ground with several dead
limbs sticking upward from it. One of these limbs was a dead sapling sticking up about
eighteen inches above the log and had a "fork" shaped like a thumb and forefinger
extended. Heesen wanted to cross the log to see the deer better, and as he stepped
across the log his left foot caught on a little limb sticking out and caused him to
stumble. His left foot went down hard on the ground on one side of the log and his
right foot slipped on the grass. This brought the gun down and the gun discharged, the
bullet striking appellant. Heesen testified that he had his hand at least six inches away
from the trigger when the gun discharged. Immediately after the gun discharged he
observed that the gun was on "fire" position.
Appellant was sitting on ground higher than Heesen at the time the gun discharged and
subsequent investigation showed that the bullet had gone uphill, hit a dead tree and
ricocheted several degrees to the left, and had thereafter struck some seedlings before
hitting appellant in the chest. The bullet traveled approximately fifty yards altogether.
Heesen went quickly to the spot where appellant was sitting, observed the seriousness
of his condition, and Heesen and Lopez' companions made immediate arrangements
to care for appellant. Heesen obtained medical aid.
There was testimony at the trial that when Heesen was going to the place of the
accident with Dr. E.L. Lindsley, he told Dr. Lindsley that the gun discharged as he was
moving it from "fire" position to the "safe" position.
Under point I, appellant contends that the trial court committed error in permitting
testimony as to the general reputation of other firearms companies who use the same
modified leaf safety device as the Higgins Model 51. A witness for appellee, Sears,
Paul A. La Violette, Jr., qualified as an expert in gun designing and testified *452 that
the following companies had an excellent reputation in the small arms field: Fabrique
Nationale of Belgium, Marlin Firearms Company, Weatherby Corporation, Colt
Firearms Company, and Jefferson Corporation. Objection was made to this testimony
on the ground that it was wholly immaterial and irrelevant to any issue in the case.
Appellant, in the third amended complaint, alleged that the Higgins Model 51 rifle was
in a dangerous and defective condition due to its negligent manufacture, design,
assembly or maintenance, in that the safety mechanism thereof moved readily and in
a dangerous manner from "safe" to "fire" position. This is an allegation of an ultimate
issue of fact which the jury had to decide. Here is an issue, the proper understanding
of which by a jury composed of six men and six ladies, requires specialized knowledge
or experience and cannot be determined independently merely from deductions made
and inferences drawn on the basis of ordinary knowledge. The jury was instructed that
expert testimony is intended only to assist them in coming to a correct conclusion upon
facts which are of a technical nature, but that the opinion of experts was not binding
upon them and the jury must determine the weight to be given to such testimony.
Appellant introduced evidence tending to prove that the safety device on the Higgins
Model 51 rifle is easy to knock off safety, making the rifle dangerous. Appellant's
witness, Frank Doyle, over appellee's, Sears', objection, expressed the opinion that the
safety device, without the telescopic sight, is not a safe piece, in that the projection is
too long and it is too prone to be knocked from "safe" to "fire" position. There is also
testimony of certain tests made with the Higgins Model 51 and the witness, Ira Kessler,
expressed the opinion that the Higgins Model 51 was unsafe without the telescopic
sight. Another witness, Robert Allen, testified as to the manner in which the safety
lever of the Higgins Model 51 moved from "safe" to "fire" position without his
knowledge.
Appellee, Sears, introduced testimony of witnesses who were either experts in the
small arms field or experts in gun designing. The witness, Paul A. La Violette, Jr.,
testified that he is a gun designer employed by High Standard Manufacturing
Company who manufacture the Higgins Model 51 for Sears. He qualified as an expert
gun designer with many years' experience with other rifle manufacturers and in
factories designing and building weapons of the small arms design. La Violette has
two gun patents pending. La Violette testified that the safety device on the Higgins
Model 51 is supplied to High Standard Manufacturing Company by Fabrique
Nationale of Belgium. He also testified extensively as to the advantages of the safety
device of the Higgins Model 51 and stated that six different makes of guns have the
same modified leaf safety device as does the Higgins Model 51. The manufacturers of
these guns are F.N. Mauser, Colt, Marlin, Nato and Weatherby. The evidence also
shows that since 1951, 75,572 Higgins Model 51 rifles with the modified leaf safety
device have been sold by High Standard Manufacturing Company to appellee, Sears.
High Standard Manufacturing Company has never been sued by reason of the design
of the Higgins Model 51 rifle. There is also opinion evidence that the Higgins Model
51 rifle is safe by all commercial sporting goods standards.
Appellant appears to concede that the number of rifles manufactured with the modified
leaf safety device, and the fact that other companies manufacture guns with the same
design, is relevant as tending to show that the design is proper. Appellant also seems
to concede that the reputation of Fabrique Nationale of Belgium may be relevant to
the issue.
Subsequent to the testimony as to the reputation of the various firearms companies
who use a similar safety device as the Higgins Model 51, the witness, Paul A. La
Violette, Jr., testified without objection that the Higgins Model 51 rifle is safe by all
commercial sporting goods standards, and that the design of the safety device of the
Higgins *453 Model 51 was not negligent or defective. He also testified, without
objection, that the safety device on the Higgins Model 51 rifle is excellent for hunting
and fulfills the requirements of a good designer. The witness, Thomas Raymond
Robinson, Jr., testified that in his opinion the Higgins Model 51 is good and practical
in the field for a prudent hunter, and is suitable for hunting. Ira L. Kessler, an expert
witness called by defendant, Heesen, testified that the Marlin Firearms Company has
a fair reputation, and that the Colt Firearms Company has an excellent reputation.
On an issue such as we have here we believe the applicable rule to be as stated in
Wigmore on Evidence, 3d Ed., Vol. II, § 461, p. 489, as follows:
"(1) The conduct of others evidences the tendency of the thing in question; and such
conduct e.g. in using chains on a hill, felt shoes in a powder-factory, railings around a
machine, or in not using them is receivable with other evidence showing the tendency
of the thing as dangerous, defective, or the reverse. But this is only evidence. The jury
may find from other evidence that the thing was in fact dangerous, defective, or the
reverse, and the maintenance was or was not negligence, in spite of the above evidence.
* * *"
The conduct of others is proper evidence for a jury to consider in determining whether
the tendency of the thing is dangerous, defective, or the reverse. Chicago Great
Western Ry. Co. v. McDonough, 8 Cir., 161 F. 657; Wigmore on Evidence, 3d Ed.,
Vol. II, § 461, p. 495.
Under our Rule, § 21-1-1(43) (a), which is the same as the Federal Rule, the rule which
favors the reception of the evidence governs, the basis being that any evidence which
throws light on the question in issue should be admitted, leaving it to the trial court to
hold the hearing within reasonable bounds. Mourikas v. Vardianos, 4 Cir., 169 F.2d
53; Lawrence v. Nutter, 4 Cir., 203 F.2d 540.
Circuit Judge Bratton, in a specially concurring opinion in United States v. Bowman,
10 Cir., 73 F.2d 716, 720, in stating the rule, quoted from United States Smelting Co.
v. Parry, 8 Cir., 166 F. 407, as follows:
"It is true that in trials by jury it is their province to determine the ultimate facts, and
that the general rule is that witnesses are permitted to testify to the primary facts within
their knowledge, but not to their opinions. And it is also true that this has at times led
to the statement that witnesses may not give their opinions upon the ultimate facts
which the jury are to decide, because that would supplant their judgment and usurp
their province. But such a statement is not to be taken literally. It but reflects the
general rule, which is subject to important qualifications, and never was intended to
close any reasonable avenue to the truth in the investigation of questions of fact.
Besides, the tendency of modern decisions is not only to give as wide a scope as is
reasonably possible to the investigation of such questions, but also to accord to the
trial judge a certain discretion in determining what testimony has a tendency to
establish the ultimate facts, and to disturb his decision admitting testimony of that
character only when it plainly appears that the testimony had no legitimate bearing
upon the questions at issue and was calculated to prejudice the minds of the jurors. *
* *"
Applying the above principles we hold that the testimony as to the reputation of
Fabrique Nationale, who manufacture the safety device on the Higgins Model 51, and
the reputation of Marlin Firearms Company, Weatherby Corporation, Colt Firearms
Company and Jefferson Corporation, who manufacture rifles which have the same
modified leaf safety device as the Higgins Model 51, was relevant to the issue of
whether the safety device on the Higgins Model 51 was unsafe or safe, and *454 that
the trial court did not abuse its discretion in admitting this testimony.
Under point II appellant also contends that the trial court committed error in permitting
evidence to be introduced as to the poundage pressure required to move the safety
levers of various rifles from "safe" to "fire" position. There is no merit in this
contention. Appellant's witness, Frank Doyle, testified fully as to his experience with
guns and particularly with the Higgins Model 51 safety device, which he termed the
dangerous feature of the safety mechanism in that it was "so easy to knock off."
Doyle's testimony was introduced under appellant's contention that the Higgins Model
51 rifle was unsafe and thus the issue arose as to the pressure required to move the
safety lever from "safe" to "fire" position. Under the circumstances it was proper for
appellee, Sears, to show that the poundage pressure required to move the safety lever
on a Higgins Model 51 from "safe" to "fire" measured two-and-one-half pounds, and
also to show the poundage pressure required in rifles with identical safety devices. The
evidence discloses that the pound pressure required to move the safety lever on other
similar devices was sometimes a little less and sometimes more than the Higgins
Model 51.
Under point III appellant claims that the trial court erred in permitting the witnesses,
La Violette, Thomas Robinson and Edwards Brown, to give opinion evidence that the
safety mechanism on the Higgins Model 51 rifle was negligently or defectively
designed. Objection was made to this testimony on the ground that this was an opinion
upon a subject which is within the province of the jury to determine and that the
question asked calls for an opinion as to a question of law and fact.
This contention, we think, must be rejected. The testimony of these witnesses, all
experts in their field, was upon the ultimate issue of fact of whether the safety device
on the Higgins Model 51 was dangerous and defective or unsafe, and was properly the
subject of expert testimony. Opinion evidence on an ultimate issue of fact does not
attempt or have the power to usurp the functions of the jury, and this evidence could
not usurp the jury's function because the jury may still reject these opinions and accept
some other view. Opinion evidence offered by both parties in this case was not binding
upon the jury and they were so instructed. See Wigmore on Evidence, 3d Ed., Vol.
VII, § 1920, p. 17; Hooper v. General Motors Corp., 123 Utah 515, 260 P.2d 549.
In Millers' National Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d
93, 100, the court said:
"The insurance companies assert that McDonald was improperly permitted to invade
and usurp the province of the jury in that the sole issue was whether there was an
explosion and McDonald was allowed to testify that there was an explosion. The
controlling rule as stated by the United States Supreme Court is that where the matter
under inquiry is properly the subject of expert testimony, it is no objection that the
opinion sought to be elicited is upon the issue to be decided. That rule has been
followed in this circuit and applied in two recent decisions."
See also Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122;
United States Smelting Co. v. Parry, 8 Cir., 166 F. 407; Nelson v. Brames, 10 Cir.,
1957, 241 F.2d 256; and Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038.
In 20 Am.Jur., Evidence, § 775, p. 647, the rule is stated as follows:
"* * * In such cases, witnesses possessing requisite training, skill, or knowledge,
denominated `experts,' may testify, not only to the facts, but to their opinions
respecting the facts, so far as necessary to enlighten the jury and to enable it to come
to a right verdict. * * * Issues of this kind are said to create a necessity for the
admission in evidence of the opinions or conclusions of witnesses who are *455 shown
to be specially skilled or experienced in the particular field in question."
Appellant's final objection to the opinion testimony is that the question asked of the
witnesses calls for an opinion as to a question of law and fact.
Many of the cases cited by appellant on this point are automobile accident cases which
hold that an expert or a non-expert witness cannot express an opinion that the
defendant was negligent. The reasoning behind these cases is that this is within the
field of knowledge and understanding of the jury and is not a matter requiring technical
assistance of persons having unusual knowledge of the subject by reason of skill,
experience, or knowledge.
The parties agree that the ultimate issue of liability is for the jury to determine and that
a witness cannot express an opinion on a matter of law, as distinguished from an
ultimate fact. The ultimate issue in this case was whether the safety mechanism on the
Higgins Model 51 rifle was in a dangerous and defective condition due to its negligent
design, in that it moved readily and in a dangerous manner from "safe" to "fire"
position.
Appellant's witnesses testified at great length in what respect they considered the
safety mechanism "dangerous," "unsafe," and "defective," and expressed the opinion
that the safety mechanism was not a safe piece and was unsafe without the telescopic
sight. Appellees' expert witnesses likewise testified in great detail as to the safety
mechanism and they were of the opinion that the safety mechanism on the Higgins
Model 51 rifle was safe by all commercial sporting goods standards, was suitable for
hunting, and was not negligently or defectively designed. Thus the jury was free to
adopt either view and then fix the liability.
The word "negligence" is sometimes used in a broad sense and sometimes in a narrow
sense. In the broad sense it includes the elements of liability. In the narrow sense the
element of liability is excluded. Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 78 Ind.
App. 361, 130 N.E. 546, 553.
"* * * An allegation of negligence as applied to the conduct of a party is not a mere
conclusion of law, unless made so by the law, but the statement of an ultimate
pleadable and provable fact. * * *"
Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797; and Hooper v.
General Motors Corp., supra.
From a careful consideration of the record, we have come to the conclusion that when
we consider all of the testimony *456 bearing upon the question of whether the rifle
was dangerous and defective due to its negligent design, that when appellee used the
term "negligent or defective," he was using the word "negligent" in a narrow sense and
as to an ultimate and provable fact. This excluded the element of liability. It was for
the jury to fix the ultimate liability of either party. All of the facts went to the jury and
it is our view that under all of the facts and circumstances of this case, the expert
opinions expressed were not improperly admitted.
The trial court did not abuse its discretion in permitting the experts to express their
opinion. Bunton v. Hull, 51 N.M. 5, 177 P.2d 168; State v. Padilla, 1959, 66 N.M.
289, 347 P.2d 312; and Wells Truckways v. Cebrian, 1954, 122 Cal. App. 2d 666, 265
P.2d 557.
Finding no error in the record, the judgment of the district court is affirmed. It is so
ordered.

Peavy v. Hardin, Tex.Civ.App. 1926, 288 S.W. 588, 589. See also Gower v. Lamb,
Mo. App. 1955, 282 S.W.2d 867; Ege v. Born, 212 Iowa 1138, 236 N.W. 75; Cohen
v. Swiller, 1959, 17 Misc.2d 921, 186 N.Y.S.2d 844; Louis v. Smith-McCormick
Const. Co., 1917, 80 W. Va. 159, 92 S.E. 249; and Hooper v. General Motors Corp.,
123 Utah 515, 260 P.2d 549.

Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, follows the rule that an
expert witness can express an opinion on an ultimate issue of fact, but cannot testify
as to the ultimate issue of liability.

There is much confusion among the decisions due to the language used by the courts
in explaining why opinion testimony should be excluded. Some courts say that the
opinion would "usurp the functions of the jury." Other courts say that the opinion
should not be received because "that is the question which the jury must decide." If
we are to add to this, the additional confusion which exists in the decisions as to
whether negligence is a question of law or fact, or is a mixed question of law and fact,
we would tend to create more confusion and add to the fine distinctions and
limitations.

Opinion evidence is admissible on the basis that it will aid the jury to understand the
problem and lead them to the truth on the ultimate facts, and opinions may be
disregarded by the jury in whole or in part. It is left to the jury to decide the issue. See
 STATE V. BALL
339 S.W.2d 783 (1960)
STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
No. 47575.
Supreme Court of Missouri, En Banc.
November 14, 1960.
Dewey S. Godfrey, St. Louis, for appellant.
*784 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. §§ 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. § 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 § 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. § 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 *785 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 shoesthese were exhibits one and two, Ball admitted that they belonged to him
although his evidence tended to 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 as the money
which was allegedly stolen from the A. L. Krekeler & Sons Jewelry Company on the
15th day of October, 1958; that said evidence was considered by this jury to the
prejudice of this defendant convincingly."
The circumstances in which this evidence was introduced were these: After the clothes
were identified and introduced as exhibits one and two the prosecuting attorney
inquired of officer Powell, "Did you also seize his personal effects?" Defense counsel
immediately objected to any testimony relating to personal effects found on the
defendant "at the time." The court overruled the objection and state's counsel inquired,
"Well Officer, what personal effects were seized?" Defense counsel, evidently
knowing and anticipating, objected "to any testimony relevant (sic) to any personal
effects seized upon this Defendant at the time he was arrested by reason of the fact it
is immaterial and irrelevant and tends to neither prove nor disprove any facts involved
and ask that the jury be discharged and a mistrial be declared." The court overruled
the objection and the officer said, "Ball's personal effects consisted of two hundred
and fifty eight dollars and two cents in cash, with the denominations of the bill(s), two
one hundred dollar bills, a twentytwo twenties, a ten, a five, three ones and two
pennies. He had a ladies ring and a man's wristwatch. He had a crusifixion along with
a small pen knife and a black leather wallet. Maybe one or two other personal articles."
All of these items were then marked as exhibits, from three to nine, offered in evidence
and described by the officer, exhibit three being the bills and pennies comprising the
$258.02. According to the officer Mr. Krekeler was unable to identify any of these
articles or the money as having come from the jewelry store robbery and there is no
objection in the motion to any of the items other than the money and some of them
were obviously not prejudicial, for example the keys, a small penknife and wallet.
the denomination of the money in the cash register, it was simply a total of $140. Here
nineteen days had elapsed, there was no proof that Ball had suddenly come into
possession of the $258.02 (annotation 123 A.L.R. 119) and in all these circumstances
"The mere possession of a quantity of money is in itself no indication that the possessor
was the taker of money charged as taken, because in general all money of the same
denomination and material is alike, and the hypothesis that the money found is the
same as the money taken is too forced and extraordinary to be receivable." 1 Wigmore,
Evidence, Sec. 154, p. 601. In the absence of proof or of a fair inference from the
record that the money in Ball's possession at the time of his arrest came from or had
some connection with the robbery and in the absence of a plain showing of his
impecuniousness before the robbery and his sudden affluence (State v. Garrett, 285
Mo. 279, 226 S.W. 4), the evidence was not in fact relevant and in the circumstances
was obviously prejudicial for if it did not tend to prove the offense for which the
appellant was on trial the jury may have inferred that he was guilty of another robbery.
State v. Bray, Mo. App., 278 S.W.2d 49; People v. Orloff, 65 Cal. App. 2d 614, 620-
621, 151 P.2d 288; annotation 123 A.L.R. loc. cit. 132-134 and compare the facts and
circumstances in State v. Garrett, supra. The admission of the evidence in the
circumstances of this record infringed the right to a fair trial and for that reason the
judgment is reversed and the cause remanded.
PER CURIAM.

Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en
to the $258.02 was not offered in proof of the substantive fact of the crime. In that case banc.
the five-dollar roll of dimes wrapped in a roll of green paper was found on the WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.
defendant the same day of the burglary and while the fact was a circumstance
admissible in evidence it was held to not constitute substantive evidence inconsistent HYDE, C. J., and LEEDY and DALTON, JJ., dissent.
with the hypothesis of the defendant's innocence of burglary. In State v. Gerberding,
Mo., 272 S.W.2d 230, there was no timely or proper objection to the proof but $4,000
was taken in a robbery and *786 the appellant had $920 in currency in his topcoat
pocket when captured the day of the robbery. The proof of the money here was
evidently on the theory that Ball did not have or was not likely to have such a sum of
money on his person prior to the commission of the offense. 1 Wharton, Criminal
Evidence, Sec. 204, p. 410. As to this the facts were that he had been out of the
penitentiary about eight months and the inference the state would draw is that he had
no visible means of support and no employment and could not possibly have $258.02
except from robberies. Of course, there was no such proof and Ball claimed that he
had worked intermittently for a custodian or janitor of an apartment house and that he
had won the $258.02 in a series of crap games at a named place. Not only was Krekeler
unable to identify the money or any of the items on Ball's person as having come from
the jewelry store so that in fact they were not admissible in evidence (annotation 3
A.L.R. 1213), the charge here was that Ball and his accomplice took jewelry of the
value of $4,455.21 and $140 in cash from the cash register. There was no proof as to