State v. O'Brien, No. 43083

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation252 S.W.2d 357
Docket NumberNo. 43083,No. 2
Decision Date13 October 1952
PartiesSTATE v. O'BRIEN

Page 357

252 S.W.2d 357
STATE

v.
O'BRIEN.
No. 43083.
Supreme Court of Missouri, Division No. 2.
Oct. 13, 1952.
Motion for Rehearing or to Transfer to Court en Banc Denied
Nov. 10, 1952.

Page 358

Robert S. Allen, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Under information filed in the Circuit Court of the City of St. Louis, Thomas Joseph O'Brien was charged with the felonious stealing of a 1950 model Mercury four door sedan, the property of Joseph and Lucille Messler, section 560.165 RSMo 1949, V.A.M.S., and with two prior convictions under the habitual criminal act. The jury returned a verdict of guilty and assessed his punishment at ten years imprisonment. He appeals from the judgment entered thereon, and contends that specified evidence tending to connect him with the offense was erroneously admitted; that the admission of evidence of his prior convictions, confinements and discharges constituted error; and that the competent evidence was insufficient to sustain the verdict.

The State's evidence (defendant offered no evidence) tended to establish the following facts. Joseph Messler and Lucille Messler, husband and wife, were the owners of a 1950 Mercury sedan, valued at $2,200. They had owned the car only six or seven weeks, when about 2:30 on the afternoon of July 25, 1950, Mr. Messler parked it near his tavern on the corner of Missouri and Cherokee in the City of St. Louis. He saw the car where he had parked it about 6 p. m., but when he left his place of business at 6:30 p. m., he discovered it had been stolen.

Mr. and Mrs. Daus, who live at 2631 Oregon Avenue, St. Louis, Missouri, advertised a garage connected with their property for rent. On July 3 or 4, 1950, three men looked at the garage, a two-car garage, and agreed to rent it. Later defendant, who gave his name as W. M. Brockmeier, returned and paid the rent, $12 a month, and took Mr. Daus' receipt therefor. He also paid the rent when it became due for the months of August and September, 1950. When Mr. Daus asked defendant if he wanted a lock for the garage, defendant put the lock on the window sill and stated: 'We have our own lock.' The windows of the garage were clear.

About 8:45 p. m. on September 6, 1950, defendant and two companions were 'picked up' by the police in front of the

Page 359

tavern at Missouri and Cherokee and were placed in the 'holdover,' described as being the place where persons were kept while the police made investigations. Defendant was searched at the station and several items of his personal property, including a key ring with several keys, were put in an envelope and marked as his property. On September 8, 1950, at the direction of one of defendant's companions, several police officers proceeded to 2631 Oregon Avenue where Captain Flynn asked and secured from Mrs. Daus permission to inspect the garage. They found the garage locked and the windows covered with cardboard or cloth so one could not see through them. However, one window was open about six inches. Upon looking through this window they saw a Mercury automobile, with tires and wheels off and resting on wooden blocks. One of the officers entered the garage through the window, and released the wooden bar on one of the doors and let the other officers in. Further investigation disclosed that one of defendant's keys fitted the padlock. When defendant was confronted with this fact by the officers, he stated: '* * * you have got me. All I want is a lawyer.'

The Mercury automobile in the garage was the one stolen from the Messlers on July 25, 1950.

Defendant, in his brief here, contends his motion to suppress all evidence involving the key to the padlock on the garage and all evidence concerning the contents of the garage where the automobile was found should have been sustained on the ground said evidence was obtained by an illegal and unreasonable search and...

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27 practice notes
  • Johnson v. Wyrick, Civ. A. No. 73CV252-W-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 1974
    ...at bar ". . . goes only to the punishment, not the guilt or innocence of an accused of the offense on trial. . . ." Missouri v. O'Brien, 252 S.W.2d 357, 360 (Mo.Sup.1952); Missouri v. Johnson, 485 S.W.2d 106, 112 (Mo.Sup.1972). In Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26......
  • State v. Caffey, Nos. 49364
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1970
    ...the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. State v. O'Brien, Mo., 252 S.W.2d 357, certiorari denied, 345 U.S. 929, 73 S.Ct. 790, 97 .l.Ed. 1359; State v. Lord, Mo., 286 S.W.2d 737; State v. Holt, (Mo., 415 S.W.2d 761) sup......
  • State v. Ash, No. 45006
    • United States
    • Missouri Supreme Court
    • February 13, 1956
    ...of his persistence in perpetrating crimes. The punishment is for the offense on trial, not the prior offense. State v. O'Brien, Mo., 252 S.W.2d 357[4, 5], certiorari denied 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Ward, 356 Mo. 499, 202 S.W.2d 46[7, 8]; 1002. Defendant is not pla......
  • State v. Cobb, No. 75685
    • United States
    • United States State Supreme Court of Missouri
    • April 26, 1994
    ...criminal act goes only to the punishment, not to the guilt or innocence of the accused of the offense on trial...." State v. O'Brien, 252 S.W.2d 357, 360. "... [T]he Double Jeopardy Clause of the Fifth Amendment is written in terms of potential risk of trial and conviction, not punishment .......
  • Request a trial to view additional results
27 cases
  • Johnson v. Wyrick, Civ. A. No. 73CV252-W-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • August 12, 1974
    ...at bar ". . . goes only to the punishment, not the guilt or innocence of an accused of the offense on trial. . . ." Missouri v. O'Brien, 252 S.W.2d 357, 360 (Mo.Sup.1952); Missouri v. Johnson, 485 S.W.2d 106, 112 (Mo.Sup.1972). In Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26......
  • State v. Caffey, Nos. 49364
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1970
    ...the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. State v. O'Brien, Mo., 252 S.W.2d 357, certiorari denied, 345 U.S. 929, 73 S.Ct. 790, 97 .l.Ed. 1359; State v. Lord, Mo., 286 S.W.2d 737; State v. Holt, (Mo., 415 S.W.2d 761) sup......
  • State v. Ash, No. 45006
    • United States
    • Missouri Supreme Court
    • February 13, 1956
    ...of his persistence in perpetrating crimes. The punishment is for the offense on trial, not the prior offense. State v. O'Brien, Mo., 252 S.W.2d 357[4, 5], certiorari denied 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Ward, 356 Mo. 499, 202 S.W.2d 46[7, 8]; 1002. Defendant is not pla......
  • State v. Cobb, No. 75685
    • United States
    • United States State Supreme Court of Missouri
    • April 26, 1994
    ...criminal act goes only to the punishment, not to the guilt or innocence of the accused of the offense on trial...." State v. O'Brien, 252 S.W.2d 357, 360. "... [T]he Double Jeopardy Clause of the Fifth Amendment is written in terms of potential risk of trial and conviction, not punishment .......
  • Request a trial to view additional results

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