City of St. Louis v. Gavin, 27687.

• Citation: 222 S.W.2d 531
• Decision Date: 21 June 1949
• Docket Number: No. 27687.,27687.
• Parties: CITY OF ST. LOUIS v. GAVIN.
• Court: Court of Appeal of Missouri (US)

222 S.W.2d 531 CITY OF ST. LOUIS
v.
GAVIN. No. 27687. St. Louis Court of Appeals. Missouri. June 21, 1949.

Appeal from St. Louis Court of Criminal Correction; David W. Fitzgibbon, Judge.

"Not to be reported in State Reports."

Aras Gavin was convicted in the City Court of St. Louis and on appeal in the

[222 S.W.2d 532]

St. Louis Court of Criminal Correction for conducting a lottery, and he appeals.

Affirmed.

Morris A. Shenker, St. Louis, for appellant.

James E. Crowe, John P. McCammon, Francis M. Barnes, III, St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal from a conviction on a charge of violating an ordinance of the City of St. Louis, Missouri. An information was filed in City Court No. 2 of said city, wherein it was charged that Aras Gavin, defendant, on the 26th day of June, 1947, in violation of Ordinance No. 41386, Section 1677, of said city (shown in Article IV Chapter XXIII Revised Code of St. Louis 1936) "did then and there make, establish and aid or assist in making and establishing a lottery, gift and enterprise and scheme of drawing in the nature of a lottery. (Policy)" Upon a trial in said City Court defendant was found guilty as charged and his punishment assessed at a fine of $200.00 and costs. From said judgment he appealed to the St. Louis Court of Criminal Correction, where the cause was tried before the court, resulting in a judgment exactly similar to that rendered in the City Court. From the judgment of the Court of Criminal Correction defendant appealed to this court.

At the beginning of the trial in the Court of Criminal Correction defendant filed a motion to suppress certain evidence in which motion he alleged that police officers of the City of St. Louis were in possession of certain articles which had been seized from him illegally and unlawfully and which the City of St. Louis intended to use against him in the trial. Defendant also alleged that the use of such evidence against him would be in violation of his rights under the Constitution of Missouri, Article I, Section 15, Mo.R.S.A. Const.1945. Testimony on said motion was heard by the court, after which the motion was overruled, defendant saving his exception. Whereupon the cause was heard by the court, resulting in the judgment of conviction heretofore referred to.

Ordinarily when a constitutional question is raised and preserved in a cause, the Supreme Court has exclusive jurisdiction of such cause on appeal. See Article V, Section 3, Constitution of Missouri. In this case, however, we believe, for reasons which will be shown later, there is no constitutional question involved. Hence, this court has jurisdiction of the appeal.

Police Officer Robert Griffin testified that he arrested defendant on June 26, 1947, along with several other individuals on the southeast corner of Newberry Terrace and Marcus Street in the City of St. Louis. The witness stated that he had seen the defendant come from premises in Lewis Place, for which the officer had a search warrant, a few moments previously and approach an automobile parked on the west side of Marcus Street; that defendant got in said car and it was driven around the block; that he followed said car and noticed that defendant exchanged "something, some object" with one Joe Major who was seated in the car, but that he (the witness) was unable to distinguish what the object was. The witness and his associate officer, after following the car and observing the actions of its occupants, drove up alongside of the car as it stopped, and, as defendant was about to alight from it, arrested all the occupants. The officer testified that he did not have any warrant for the arrest of defendant or for the search of defendant's person or of the automobile, although he did have search warrants for search of the premises at 1530 Franklin Avenue and 4557 Lewis Place; that prior to the arrest he saw nothing on defendant nor did he see him do anything except to exchange with Joe Major the articles mentioned; that the search warrant for the premises at 4557 Lewis Place was executed after the defendant was arrested.

Officer Griffin further testified that prior to the arrest of defendant on the day in question, he had made a policy bet of two dollars with a man, known to him as Frank

222 S.W.2d 533

Cooley, at 15th and O'Fallon Streets; that he followed Cooley to the premises at 1530-A Franklin Avenue and saw him enter the building; that thereafter a man, unknown to the officer, came out of said premises and later, upon the approach of the automobile heretofore mentioned, which was being driven by one Leonard Barnes, the unknown man extended his hand into the automobile and then walked away from it; that the witness could not tell whether or not said man had anything in his hand; that the witness and his associate officer followed said automobile; that they saw another man enter the automobile and saw the said Leonard Barnes get out of the automobile and encounter a man known as Joe Taylor McGee on the street corner after which both got into the automobile; that the officers then followed the automobile to a place where the defendant entered the car and "an exchange of some packages" was made between defendant and Joe...