State v. Aston, 51987

Decision Date13 March 1967
Docket NumberNo. 51987,No. 2,51987,2
Citation412 S.W.2d 175
PartiesSTATE of Missouri, Respondent, v. John William ASTON, Appellant
CourtMissouri Supreme Court

Richard J. Rabbitt, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Michael J. Yatkeman, Sp. Asst. Atty. Gen., St. Louis, for respondent.

EAGER, Presiding Judge.

Defendant was found guilty by a jury of second degree burglary and of stealing. The jury assessed his punishment at imprisonment for two years on each offense, separately. The trial court, obviously acting under § 560.110, RSMo 1959, V.A.M.S. (to which all statutory citations will refer), as amended in Laws 1959, H.B. 260, sentenced defendant to two years for each offense, the terms to run concurrently. We have recognized that the Court has that power under the statute. State v. Sims, Mo., 386 S.W.2d 396; see also State v. Taylor, Mo., 336 S.W.2d 495.

Defendant was represented prior to trial and throughout the trial by counsel of his own selection. A comprehensive motion for new trial was filed; when this was overruled, counsel filed notice of appeal and ordered, approved and filed the transcript, after having procured additional time. Counsel has, however elected not to file a brief on appeal, hence we consider those assignments of the motion for new trial which are sufficient under Rule 27.20, V.A.M.R. We note here that this practice will not be continued under our Rule 28.02 as recently amended (Journal of Missouri Bar, February, 1967), effective September 1, 1967. Since one of the assignments questions the sufficiency of the evidence, it will be necessary to state the evidence in some detail.

In the early morning of May 1, 1964, a tavern and restaurant operated by one Louis Seiler at 1943 Woodson Road in Overland, St. Louis County, was broken into. Seiler had closed it securely at 2:45 a.m. when he left. When he next saw the place about 9:00 a.m., having been called by the girl who reported at 8:00 a.m. for the day shift, he, as well as the police, who came about 8:15, found this situation: the heavy wire screen covering a large exhaust fan at the rear of the kitchen had been pulled or forced up from the bottom of the frame, and two blades of the fan had been bent inward, leaving an opening from the outside; the coin box of a pinball machine had been pried open and removed and the wooden frame around it had been split, with strips of wood on the floor underneath; the cash drawer or coin box of the pool table (which was coin operated) had been pried open and was empty; there was no money in either machine; a drawer under the cash register had been ransacked and from it a blackjack owned by Seiler had been taken; a Winchester shotgun, which was owned by Harry Wipke and was being kept temporarily at the tavern, was gone, and the contents of a filing cabinet had been 'dumped out and disturbed.' A sliding window was also found open; this locked with a 'throw over' latch from the inside. The pinball machine took dimes; the pool table quarters. Both were owned by one Otis Greif and his father and they were the only ones who opened them and took out money. Seiler did not even have keys.

At approximately 3:30 a.m. on May 1, 1964, an officer of the Overland police, on regular patrol, saw a 1958 Pontiac in the parking lot adjacent to the tavern. He went over to the car; there were two men in it. He talked to the driver and asked him what they were doing there; the latter replied that they were waiting for some 'girl friends.' The driver gave his name as Rickett, and said that the name of the other man (who appeared to be asleep) was John Aston; the officer looked at Rickett's driver's license, took the license number of the car and made notations of the information he had received. At about 5:00 p.m. on that day he saw the same car in the 'storage yard' of the Overland garage and saw this defendant at the Overland police station. He identified defendant at the trial as the same man he had seen in the car as a passenger at 3:30 a.m. on May 1, 1964, in the lot adjacent to the tavern. The officer incorporated his notes into the police report which he reviewed before testifying.

At 12:30 a.m. on May 1, 1964, William Pierce, a patrolman of the St. Louis County police, driving alone, pursued a 1958 white and green Pontiac, traveling at high speed on Lindbergh Boulevard, but lost it. There were one or two occupants besides the driver. He noted that it had one taillight out. At about 3:30 to 4:00 a.m. he saw what he believed to be the same car, occupied only by the driver, on McKelvey Road; he followed it to St. Charles Road, thence west on St. Charles; when the car reached the overpass of Interstate 270, it made a right turn on a ramp which took it to the southbound lanes of 270; when it reached those lanes it was driven north for a short distance, then crossed the median strip and was driven on north in the northbound lanes, attaining speeds in excess of 75 miles an hour. The patrolman managed to overtake it and stop it with his red light and siren. He approached the driver and told him that he was under arrest for careless and reckless driving and for speeding, and instructed him to come out of the car. The driver was this defendant and was so identified at the trial. As defendant started to come out of the car, he was apparently shoving something underneath the seat. The officer placed handcuffs on him and had him stand at the front of the car; he then searched the car and found the following articles: a quantity of dimes, quarters and nickels both on the front seat and on the floor; a blackjack, a shotgun and a tire tool or lug wrench were found under the seat. A portion of the money on the seat was in a handkerchief, the rest was loose. The money was counted, being $59.90 in dimes, $2.75 in quarters, three nickels and two pennies; all the articles were taken to the police station and marked, the money and handkerchief being placed in a suitable container. All were produced and identified at the trial. The car was towed in to the police station or a garage; defendant was taken first to the county police station and processed, but he was turned over to the Overland police at about 11:00 a.m. When the officer asked him at the scene about the money and gun, he said that he was a coin collector and that he had bought the gun for $7 from a man whom he did not know; he further stated that he carried the lug wrench and blackjack for his protection. The shotgun was positively identified at the trial by Harry Wipke as the one which belonged to him and which had been left at the tavern; the blackjack was stated by Seiler to be identical to the one which had been stolen from the tavern.

Seiler testified that defendant had been in his tavern on the night of the burglary, that he had served him drinks, and that a man known to him as 'Rick' had been with him. Defendant's trousers and shirt were sent to the Highway Patrol for testing, with a sample of grease and paint from the exhaust fan. A Highway Patrol chemist testified that grease found on defendant's shirt and trousers was of the same type as that found on the fan; another examiner testified that the markings on the wood taken from the machines in the tavern were prymarks and that they could have been made by the tools (tire tool and screwdriver) produced and identified at the trial; if not, then by similar tools.

At the Overland police station defendant was again 'processed' taking perhaps an hour or an hour and a quarter. At about noon Detective Leonard Crump started to question him about the burglary and he denied any participation; they then talked, more or less casually for perhaps thirty minutes, after which defendant was again questioned. At that time he said that he had 'domestic problems and also other problems, and that he might as well get it straightened out.' The officer testified that defendant then stated orally: that he and another man drove to the tavern at about 3:00 a.m., that the other man sat in the car while he, the defendant, went around to the back of the tavern, pried open a screen over the fan opening and crawled in; that he then 'pried open some pinball machines,' took a shotgun and left; that as they were backing out an officer of the Overland police drove up and questioned Rickett (whom he identified as the other man), took their names, etc., and told them to leave; that they then went back to a restaurant where they had left Rickett's car, and separated; that on his way home he was arrested by a county policeman; that they had left a third man in Rickett's car because he was intoxicated and had 'passed out.' The only objection, if it be such, to any part of the foregoing testimony was made after a full recital of defendant's statements concerning the burglary and preceded a statement of what the Overland police officer had said and what defendant and Rickett did thereafter. The statement of counsel was as follows: 'I object to what he said that day. I think it should be more specific.' The Court said: 'Overruled.' We digress here to say that this was in nowise a valid objection to a confession, as such. It stated no reasons whatever, and actually seems to have been directed at procuring more specific wording.

Another officer, Thomas Hardesty, was also present at the interrogation. He corroborated the oral statements of defendant as just related. All the foregoing consumed about an hour, during which time both defendant and the officers had eaten hamburgers and had drunk coffee. At about 1:00 o'clock defendant personally wrote a confession, actually printing the body of it in his own hand, and, when completed he signed it. The officers testified that the wording was entirely his own. It contained no more, and probably less, than his oral statements. In toto, omitting signature and witnesses, it was as follows: 'Voluntary statement under arrest. Date: May 1, 1964; time, 1 P.M.; place,...

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