State v. Baldwin

• Decision Date: 14 February 1966
• Docket Number: No. 1,No. 51439,51439,1
• Citation: State v. Baldwin, 399 S.W.2d 22 (Mo. 1966)
• Parties: STATE of Missouri, Respondent, v. Raymond BALDWIN, Appellant
• Court: Missouri Supreme Court

Page 22

399 S.W.2d 22

STATE of Missouri, Respondent, v. Raymond BALDWIN, Appellant.

No. 51439.

Supreme Court of Missouri, Division No. 1.

Feb. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Gene B. Rosen, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Pinnell & Monroe, by W. H. Pinnell, Monett, for appellant.

HOUSER, Commissioner.

Defendant Raymond Baldwin, convicted by a jury of burglary and stealing and sentenced to the penitentiary, has appealed, raising only one point: error in the admission of certain testimony relating to a rifle, one of the articles allegedly stolen.

A brief resume of the state's evidence follows:

Joe Landreth, manager of a lumberyard at Purdy, testified that he owned a .22 calibre Western Field rifle and a television set, both of which were behind the counter in the lumber company office building on the night of September 30, 1963 when the office was closed at the end of the business day. The next morning, October 1, the television set and rifle were missing. There were marks on the office door, which had been pried open. Mr. Landreth identified the rifle produced in court, State's Exhibit No. 2, as property of his in the building on on the night of September 30, 1963. Defendant's counsel, referring to State's Exhibit No. 2, admitted in open court that 'this is Mr. Landreth's rifle and also his television set.'

Lorene Owens testified that defendant, defendant's brother Jim and she drove to Purdy the evening of September 30, 1963; drive around town and parked by the railroad track at a place where there were no lights. She stayed in the car. The two men walked down the railroad track. They were gone quite a while. When they returned they got in the car, drove around to a place where a television set and a rifle were 'setting in the weeds,' and loaded the set and the rifle in the back seat of the car. Jim said 'I have got you a television.' The men agreed that Jim should take the television set and Raymond should take the rifle. Jim took the television set to Lorene's apartment in Springfield. Later Raymond told Lorene that he had taken the rifle to his brother's referring to Donald Baldwin. Defendant made no objection to the testimony that he had taken the rifle to Donald's.

The next witness, a police officer, in relating how he came into possession of the rifle, stated that he went to the home of Donald Baldwin and knocked on the door; that Donald opened the door,

'* * * and at that time I told him----

'Mr. Pinnell: I object to that, Your Honor, what he said to him.

'The Court: Objection overruled.

'A. At that time I told him, Donald F. Baldwin, that I wanted the rifle which Raymond Baldwin had left with him.

'Mr. Pinnell: Your Honor, I object again. That has not been admissible as to what this officer told some third person outside of the presence of this defendant. That is highly prejudicial.

'The Court: Well, the objection will be overruled.

'A. Donald Baldwin----

'Q. You get back on the track again. You say you asked Donald F. Baldwin for the rifle that Raymond Baldwin had left there, is that correct?

'A. That is right. I told him I wanted it.

'Q. Go ahead.

'A. And Donald F. Baldwin said, 'O.K.; come on in.' And I walked into the house behind him, and Donald F. Baldwin went directly to a closet in the house and took this rifle out of the closet and turned it over to me. At that time, I asked him if he had bought this rifle or had knowledge of it being stolen, and he said 'No,' that Raymond wanted to leave it with him for a while.

'Mr. Pinnell: I object to that, and move for a mistrial at this time.

'The Court: That last remark will be stricken, and the jury will disregard it. The motion for mistrial will be overruled.'

There was further evidence that defendant was not present at the home of his brother Donald at the time this occurred.

The officer turned the rifle over to the sheriff. State's Exhibit No. 2 was identified by the sheriff as the rifle received from the police officer.

A preliminary examination of the police officer outside the hearing of the jury was conducted prior to the introduction of the testimony above quoted. At the conclusion of that hearing the court overruled defendant's objection to the admission of this testimony on the ground that it would not show any connection with the defendant; would not show that defendant placed the rifle in his brother Donald's home and would be prejudicial. On appeal the objection is that a statement made in the absence of one accused of crime is incompetent and inadmissible as hearsay testimony; that the officer's statement about the...