City of St. Louis v. Gavin
| Decision Date | 21 June 1949 |
| Docket Number | 27687 |
| Citation | 222 S.W.2d 531 |
| Parties | CITY OF ST. LOUIS v. GAVIN |
| Court | Missouri Court of Appeals |
Not to be reported in State Reports.
Morris A. Shenker, St. Louis, for appellant.
James E. Crowe, John P. McCammon, Francis M. Barnes, III, St Louis, for respondent.
McCULLEN
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) 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 ot 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 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 Major who was in said automobile; that the arrest of defendant and the other occupants of the car then took place.
Further testimony by Officer Griffin was that he did not recover the money he bet earlier in the day, but that he did recover the bet tab on which the bet had been recorded, and that this bet tab was found among the packages of 'top sheets' on the rear seat of the automobile where the defendant was seated at the time of the arrest; that after the arrest he searched the defendant and found on his person a slip of paper with a memorandum thereon reading: 'DT-53 259 new company, 18703, 125 new company, 29653 is 53 new company, 1625, total due company, 6460.' The officer was permitted, over defendant's objection and exception, to translate and interpret said memorandum, and he stated that it showed that sixty-four dollars and sixty cents was owed to the company by the manager of 'The End No. 5 of Big Time Policy Company.'
The officer testified over defendant's objection and exception concerning articles that were found by him and his associate officer on the rear seat of the automobile where defendant was sitting at the time of the arrest. He described said articles as follows: 'three rows of Policy top sheets, one containing eight rows, it is written on the top sheet or slip, bearing Class No. 267; and among that roll of top sheets we found top sheet, of which the bet was recorded that was made with Frank Cooley; then there was two bundles consisting of twenty policy-writers', the original top sheets, bearing Class 236, No. 3; and 28 policy-writers' original Policy top sheets bearing class number 267.' The witness also described articles that were seized from the front seat of the automobile between said McGee and Barnes at the time of the arrest, as follows; 'one package marked No. 3 containing 147 policy tickets of the Big Time, Class No. 267; one package marked No. 4 containing 104 policies of the Big Time Company, Class No. 267; one package marked No. 5 with 110 result ballots of Big Time Policy Company; one bearing Class No. 267.'
Officer Griffin stated that he had been in the Secret Service Division of the St. Louis Police Department for two and one-half years and had frequently come in contact with the gambling game called 'Policy.' He gave a comprehensive and detailed description of the game. In substance his testimony was that the game of policy is a means of gambiling by the betting of money that a certain number or numbers will be drawn in a lottery. The game is not conducted at any established place or by any one person. There are at least four persons, each of whom plays some particular part, which, in cooperation with the parts played by others, make up their part of the game, although each does his part separately. These four persons are designated as the policy-writer, the pick-up man, the operator, and the manager. Bets are placed with the policy-writer who has a top sheet prepared by the manager containing the lists of numbers. Such bets are made on the street or anywhere else. The policy-writer registers the bets in a policy book and the pick-up man collects these policy books from the policy writer. The money received from the various bettors and the policy books are turned over to the operator who prepares the result sheets. These four men meet at some designated place where the top sheets, result sheets, and result ballots are exchanged. After the drawing or lottery, result sheets and top sheets showing the winning numbers are distributed and the winnings are also distributed by the policy-writer.
Defendant for his first point contends that the trial court erred in refusing to sustain his motion to suppress the evidence heretofore mentioned and argues in support thereof that the evidence showed that the search of defendant and the seizure of the evidence procured by the officers was unreasonable and violative of defendant's constitutional rights. Defendant strongly urges that the admitted fact that the police officers did not have a warrant for defendant's arrest nor for the search of his person or of the automobile demonstrates that the use of the evidence seized by the police at the time of the arrest was unlawful and that such evidence should have been suppressed by the trial court. We are unable to agree with said contention.
It is true that Article I, Section 15 of the Constitution of Missorui provides: 'That the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by written oath or affirmation.' However, it has been held by our Supreme Court...
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