State v. Berstein

• Decision Date: 14 October 1963
• Docket Number: No. 49376,No. 2,49376,2
• Citation: 372 S.W.2d 57
• Parties: STATE of Missouri, Respondent, v. Charles BERSTEIN, a/k/a Chuck Berns, Appellant
• Court: Missouri Supreme Court

Page 57

372 S.W.2d 57

STATE of Missouri, Respondent, v. Charles BERSTEIN, a/k/a Chuck Berns, Appellant.

No. 49376.

Supreme Court of Missouri, Division No. 2.

Oct. 14, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 11, 1963.

Norman S. London, St. Louis, for defendant-appellant.

Thomas F. Eagleton, Atty. Gen., Jefferson City, Ike Skelton, Jr., Special Asst. Atty. Gen., Lexington, for respondent.

JACK P. PRITCHARD, Commissioner.

Defendant was found guilty on a charge by indictment of the grand jury of buying and receiving stolen property in the amount of value over $50.00, and his punishment was assessed by the jury at four years in the Department of Corrections. After his motion for new trial was overruled and allocution was granted, sentence on the verdict was pronounced by the trial court, and defendant duly appealed from his judgment of conviction.

The facts leading up to defendant's trial and conviction are these: On March 15, 1961, the home of Mr. and Mrs. Fred Langbein, 3876 Federer, St. Louis, Missouri, was burglarized sometime in the afternoon, and some $1,500.00 of their property therein was stolen, among which property were two oil paintings. The Langbeins reported the incident to the police immediately, gave them a list of the stolen property, and the officers came to their home to make investigation on the same day.

On March 29, 1961, Officer Harold Schriefer and Sergeant Klein went to the premises of defendant at Union and Palm Streets in the City of St. Louis, this being the next day after Klein had received an anonymous telephone call. As they were turning their car onto Union Street, they saw one Joseph Gilberti and defendant talking on the sidewalk just adjacent to defendant's used car lot. Defendant then walked away and Gilberti got into his car and drove north on Union Street to San Francisco Street where he turned east. The officers followed Gilberti for some time, there being some truck traffic between the two automobiles, and finally came up to him about the 4800 block on Natural Bridge. The officers then stopped Gilberti, placed him under arrest and asked him to open the trunk of his car, which he did, and the two oil paintings, State's Exhibits 1 and 2, identified as the property of the Langbeins, were found therein.

The following day, March 30, 1961, at about 11:50 a. m., at Natural Bridge and Union, at Frances Auto Sales, Sergeant Klein assisted in defendant's arrest, for which there was no warrant, following which defendant was taken to Police Headquarters, booked and was placed in holdover.

Upon being booked, defendant's billfold was taken from him by the officers, placed in a property envelope, and later certain papers, including the original of State's Exhibit 3 (the card list testified to by the State's principal witness, Barnes, as having been written upon by defendant in recording the amounts paid Barnes by defendant for stolen property), were photocopied by the police. Thereafter, upon defendant's release, the originals of these papers, including the original of State's Exhibit 3, were returned to him.

No issue is made here as to the submissibility of the State's case, but defendant complains of rulings of the trial court made during trial and in pretrial conferences. Those issues which are necessary to a determination of this appeal are set out below.

Defendant first says that the trial court erred in overruling his pretrial motion to suppress evidence, State's Exhibit 3, the original of which was taken by the officers from the defendant and photocopied after his arrest and at the time of his being booked and placed in holdover, on the ground that the arrest was unlawful and without probable cause to justify same.

It has long been the rule in this state, and many cases set it forth, that a peace officer may arrest without a warrant anyone who he has reasonable grounds to believe has committed a felony. State v. Williams and Wann, 328 Mo. 627, 14 S.W.2d 434; State v. Whitley, Mo., 183 S.W. 317, 320; State v. Evans, 161 Mo. 95, 110, 61 S.W. 590; State v. Cushenberry, 157 Mo. 168, 56 S.W. 737, 742; State v. Grant, 79 Mo. 113. The officer may arrest any person upon suspicion who is in fact guilty of a recent felony, whether the officer be advised of such felony or not. State v. Whitley, supra; State v. Cantrell, Mo., 310 S.W.2d 866; State v. Edwards, Mo., 317 S.W.2d 441; State v. Brown, Mo., 291 S.W.2d 615, 618[2-4]; State v. Brookshire, Mo., 353 S.W.2d 681, 684[7-9].

As to what constitutes reasonable grounds or probable cause for the officer to arrest without a warrant, it was said in State v. Cantrell, supra, loc. cit. 869 of 310 S.W.2d, 'What constitutes 'a reasonable and probable ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes. In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith.''

Being guided by the cited rule, it is clear in the instant case that the officers did not act arbitrarily. Here, the evidence is that the officers had actual, prior knowledge that a burglary and theft had been committed at the Langbein home and they had a list of the stolen property. It was common knowledge at the Police Headquarters that defendant was suspected of receiving stolen property; the officers had received an anonymous telephone call that caused them to proceed to defendant's premises (although it does not appear from this record as to what was discussed, objections being sustained as to this subject); upon arrival at defendant's premises, they saw him talking to Gilberti in whose possession the Langbeins' stolen paintings were found upon Gilberti's arrest. In addition, under the evidence presented the jury found defendant guilty of the felony as charged. We cannot say that the officers acted unreasonably in arresting defendant or without probable cause. Under the circumstances, his arrest was legal, and State's Exhibit 3 was not rendered inadmissible by such arrest.

Of course, it follows that having lawfully arrested defendant upon suspicion that he was implicated in the felony that had been committed, the officers had a right to search his person and to take into their possession any incriminating evidence, including State's Exhibit 3. State v. Raines, 339 Mo. 884, 98 S.W.2d 580, 584[6, 7]; State v. Martin, 357 Mo. 368, 208 S.W.2d 203; State v. Hands, Mo., 260 S.W.2d 14.

On October 4, 1961, five days before the trial, defendant filed his 'Motion to Strike Witness,' moving the court to strike from the indictment the name of Robert Earl Barnes and for further order that the plaintiff not be permitted to use said Robert Earl Barnes as a witness for the reason that defendant 'has, at the request, order and instruction of the plaintiff been denied the right and opportunity to interview and interrogate said Robert Earl Barnes, and that as a result thereof, defendant has been denied his right and opportunity to properly and adequately prepare his defense * * *.'

On the hearing on the motion on October 5, 1961, the following proceedings were had:

'MR. LONDON: May it be stipulated that in the indictment in this cause one Robert Earl Barnes has been endorsed by the State as a witness. That last evening I went to the Second District Station where Robert Earl Barnes is incarcerated and requested the...