State v. Bray

• Decision Date: 22 April 1955
• Docket Number: No. 29039,29039
• Citation: 278 S.W.2d 49
• Parties: STATE of Missouri (Plaintiff), Respondent, v. Maxine lrene BRAY (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 49

278 S.W.2d 49

STATE of Missouri (Plaintiff), Respondent, v. Maxine lrene BRAY (Defendant), Appellant.

No. 29039.

St. Louis Court of Appeals, Missouri.

April 22, 1955.

Chaim H. Zimbalist, Chester A. Love, Jr., Clayton, for appellant.

William J. Geekie, Jasper R. Vettori, St. Louis, for respondent.

ROBERT L. ARONSON, Special Judge.

Defendant was charged by an information with the offense of petit larceny; was found guilty by a jury, which assessed her punishment at imprisonment in the City Workhouse for one year and a fine of $100; and now has brought her appeal to this court. Her assignments of error relate to the overruling of her motion to suppress evidence obtained by means of an allegedly unlawful search and to the claimed admission into evidence of improper exhibits and testimony.

It is always our duty to be certain of our jurisdiction of a cause. In her brief, defendant directs attention to Art. I, Sec. 15 of the 1945 Constitution of Missouri, V.A.M.S., forbidding unreasonable searches and seisures. Sometimes appellate jurisdiction of a prosecution for a misdemeanor is vested in the Supreme Court because a constitutional question is involved, Art. V, Sec. 3, Constitution of Missouri 1945, V.A.M.S., and has been properly raised and preserved. See State v. McBride, 327 Mo. 184, 37 S.W.2d 423.

However, a party must present his constitutional issue at the first available opportunity, in order that the jurisdiction of the Supreme Court be invoked, Harris v. Pine Cleaners, Inc., Mo.App., 274 S.W.2d 328, 332; Baker v. Baker, Mo.App., 274 S.W.2d 322, 325, and must later keep it alive throughout the proceedings. Obviously, the first opportunity available to defendant to raise a constitutional point here was in her motion to suppress evidence. Examination of said motion discloses that while same has assertions that the searches and seizures were 'made without warrant, * * * not made as incidents to any lawful arrests, * * * made without the consent of the defendant,' and that the officers had no reasonable grounds at the time to believe defendant was guilty of a felony, yet there is not one word of reference to the State or Federal Constitutions. In this situation we have jurisdiction under the above cases and others cited therein. The general provisions of Section 479.250 RSMo 1949, V.A.M.S., covering appeals from the St. Louis Court of Criminal Correction are applicable.

The information charged defendant with the theft of 'one dress' of the value of $23 on November 28, 1953, which was the property of Thomas W. Garland, Inc., a corporation. Later an amendment was made, showing the value as $23.75.

At the hearing on the motion to suppress, the grounds of which have been quoted above, Officer Joseph C. Kelly of the Clayton Police Department, who arrested defendant on November 30, 1953, testified that a call had been received from the Famous-Barr store which caused him and his partner, Officer McHale, to go to the Clayton shopping area to look for a certain Cadillac automobile and two women who were described; no claim of theft was made in that call; that at the Scruggs store they were informed that two women of the same description had just left the store, and had taken, without payment therefor, four sweaters of the value of 'around seven dollars a piece'; that as he drove east on Forsyth Avenue alone, he observed the Cadillac on a parking lot; that two colored women soon got into it and defendant drove it east; that he caused the car to be stopped, and as he got out of the police car to talk to the women their automobile was suddenly started up again by defendant who was driving and a green shopping bag was tossed out of its right front window; that he re-entered the police car, pursued the Cadillac and stopped it again, this time in University City. Police of that City joined him, the women were taken to the University City Police Station and then released to the Clayton department. He returned to the automobile and drove it to the Clayton station at 10 o'clock P.M. The front and rear seats were searched, nothing important being found but the trunk was locked and defendant said she had lost her key.

Officer McHale testified that shortly after midnight he made a second search of the automobile which defendant had been driving; that the trunk key was found in a space between the two movable front seats; that defendant's husband was then present and gave permission to open the trunk; that the red dress involved in the instant charge and other articles were found there. The officer conceded that he had no search warrant. He identified a certificate of title showing that the Cadillac convertible was owned by Maxine Bray, the defendant.

The court overruled the motion to suppress, and defendant complains of this ruling. Her argument includes the contentions that her arrest was unlawful because the police officers had no grounds to believe that a felony had been committed (since the value of the four sweaters reportedly taken at the Scruggs store was about $7 each, or a total of $28, wherefore any wrongful taking would be no more than petit larceny, a misdemeanor) and because arrest cannot be made without warrant for a misdemeanor, unless the misdemeanor was committed in the presence of the arresting officer; and that since the arrest was unlawful there could be no valid search of defendant's automobile without a search warrant. Counsel for the State make various responses to these contentions, including the assertion that the offense was being committed in the presence of the officer if flight was in his presence, but we consider it unnecessary to rule upon these issues.

It appears that these questions are of only academic interest, under the controlling decision of our Supreme Court. By her own later conduct in giving testimony, defendant has lost the right to complain of any infringement of her constitutional rights as to search and seizure. In other words, if we assume (without deciding) that defendant's constitutional rights were violated, yet we could not hold the ruling on the motion to suppress to be prejudicial, in view of defendant's own testimony; and hence it would be futile and without benefit to decide whether the search of the automobile and the seizure of personal property found therein were illegal.

The authoritative case is State v. Smith, 357 Mo. 467, 209 S.W.2d 138, decided by Division 2 of the Supreme Court of this state in 1948, never since repudiated or criticized, and binding on us as the law on the point now under consideration. Therein, it was specifically held that since a search and seizure were beyond the authority of the State Highway Patrol under the then existing statute, same were unlawful, and a motion to suppress should have been sustained, yet the defendant had lost the right to insist upon the strict enforcement of his constitutional rights or to complain of their infringement. Said defendant (also charged with larceny) had testified voluntarily, had denied the theft, had admitted possession of the seven typewriters charged to have been stolen, but had claimed that he purchased same from a named man in a named city on a given day; and had given further explanation on details of the State's case. In its opinion, the court said that it was not the mere fact of his testifying that rendered harmless the violation of his constitutional right and that excused the use of evidence illegally obtained, but the force of what he voluntarily testified and admitted, which prevented his continuing to insist upon the enforcement of his rights. We quote (209 S.W.2d loc. cit. 140):

'* * * If he had not voluntarily given evidence of his possession and ownership of the typewriters and other implements he would not have destroyed his right to now insist upon the protection of his constitutional guaranties. Agnello v. U. S., 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. * * * In testifying in this case the appellant voluntarily admitted every fact the state sought to show by using the evidence, namely that he owned the articles or had them in his car. The only difference between the state and the appellant concerning the questioned evidence was the conflicting inferences they would have the jury draw. Having testified voluntarily to the questioned evidence and admitted his possession or ownership of the objectionable articles the appellant may not now complain that it was obtained by an unlawful search and seizure in the first instance. * * *'

See also State v. Park, 322 Mo. 69, 16 S.W.2d 30.

There is a parallel, and almost an identical, situation in the instant case. At the trial defendant here admitted possession of the red dress, but claimed to have purchased it from a man in East St. Louis, Illinois, as is more fully developed below, in our discussion of the evidence at the trial. Her voluntary admission of possession of the dress at the time of her arrest, bearing the tag which it had, renders harmless the use of evidence by the State that she had the dress then, even if illegally obtained, according to the Smith decision. Therefore, we need not pursue the subject of the intricacies of the arguments concerning the ruling on the motion to suppress.

The sufficiency of the evidence to support the verdict and judgment of conviction, being called into question by defendant, and because of complaint of error in the admission of evidence, we must review the evidence at the trial. Mr. Andrews, President of Thomas W. Garland, Inc., testified that said concern has four stores and sells women's clothing. He described its unit control system, whereby their office has a record of every piece of merchandise in all four stores; the record is first made when goods are received; it shows to which store each garment was sent; and when an item is sold a portion of the tag on the garment is removed and sent to the office, whereupon a line is drawn through the record of that...