State v. O'Brien, 43083

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

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 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 seizure.

The State contends that defendant's motion for a new trial does not allege error in the overruling of the motion to suppress and, hence, the point is not for review.

Section 547.030, RSMo 1949, V.A.M.S., provides, in part: 'The motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.' The statute is mandatory and many cases sustain the general contention of the State. State v. Williams, Mo.Sup., 292 S.W. 19, 20; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 26; State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 777[3, 4]; West, Mo.Digest, Criminal Law, k 1064.

Defendant's motion for new trial stated, so far as material here: 'That the court erred in admitting evidence over the defendant's objection concerning the discovery of a key on the defendant's person which allegedly fit a padlock on a garage in the rear of 2631 Oregon, and that the court also erred in admitting evidence over the defendant's objection concerning the discovery of a 1950 Mercury automobile or anything else concerning the interior of the garage located at the rear of 2631 Oregon, since such evidence was obtained by an unlawful and unreasonable search and seizure in violation of Art. 1, Sec. 15 of the Missouri Constitution.'

Other allegations in the motion give the facts involved in greater detail; but, as contended by the State, no mention of any motion to suppress is to be found in said motion for new trial.

The Missouri cases are to the effect that trial courts will not pause to determine whether relevant and competent evidence was obtained by an unconstitutional search or seizure unless the defendant has previously made a motion to suppress the evidence, or, possibly, unless he had no reason to anticipate the evidence would be introduced and was surprised. State v. Martin, 357 Mo. 368, 208 S.W.2d 203, 207, and authorities cited; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887[14, 15]; State v. Cox, Mo.Sup., 259 S.W. 1041[1-4]; State v. Lock, 302 Mo. 400, 259 S.W. 116, 125; State v. Dalton, Mo.Sup., 23 S.W.2d 1, 5.

The questioned evidence was competent and admissible unless it was inadmissible for some reason independent of the evidence itself. The assignment in defendant's motion for new trial strikes at its admission over the objection interposed at the trial of the case, and the motion to suppress and the court's ruling thereon is not mentioned. What is ruled in State v. Medley 360 Mo. 1032, 232 S.W.2d 519, 523, is applicable here: 'The motion to suppress and the court's ruling thereon are not mentioned or referred to in any manner in defendants' motion for a new trial and the matter complained of is not before us for consideration.' See also State v. Taylor, Mo.App., 266 S.W. 1017, 1018; State v. Thompson, 338 Mo....

To continue reading

Request your trial
34 cases
  • Johnson v. Wyrick
    • United States
    • U.S. District Court — Western District of Missouri
    • 12 Agosto 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. Johnstone, 47366
    • United States
    • United States State Supreme Court of Missouri
    • 14 Marzo 1960
    ...upon proof of a prior conviction. Many cases hold a charge under the act does not place the accused in double jeopardy. See State v. O'Brien, Mo., 252 S.W.2d 357, 360; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 330. The fairness of the act is a question of legislative policy beyond thi......
  • State v. Caffey
    • United States
    • United States State Supreme Court of Missouri
    • 14 Septiembre 1970
    ...require that 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.......
  • State v. Ash
    • United States
    • United States State Supreme Court of Missouri
    • 13 Febrero 1956
    ...because 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT