State v. Brown
| Decision Date | 14 May 1956 |
| Docket Number | No. 1,No. 45306,45306,1 |
| Citation | 291 S.W.2d 615 |
| Parties | STATE of Missouri (Plaintiff), Respondent, v. Thomas Jesse BROWN (Defendant), Appellant |
| Court | Missouri Supreme Court |
Shaw & Smith, Clayton, for appellant.
John M. Dalton, Atty. Gen., David Donnelly, Sp. Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant Thomas Jesse Brown was charged, jointly with one Carl Benton Drake, with burglary in the second degree. Section 560.070 RSMo 1949, V.A.M.S. A severance was granted, and defendant, tried separately, was convicted and his punishment assessed at two years in the State penitentiary. He has appealed from the ensuing judgment.
Defendant-appellant contends (1) that his arrest was illegal and the subsequent search and the seizure of certain articles, crowbars and screw drivers which the State introduced into evidence as the instruments used in effecting the burglary, were unreasonable and unlawful and in violation of constitutional guaranties, Art. I, Sec. 15, Const. V.A.M.S., and the trial court erred in denying his motion to suppress such evidence; (2) that the trial court erred in permitting a witness to express an opinion that the marks on certain exhibits were or could have been made by the crowbars and screw drivers which had been seized by the officers--it is said that the opinion evidence invaded the province of the jury and was erroneously admitted in relation to a subject upon which expert testimony was not required; and (3) that the trial court erred in overruling defendant's motion for a judgment of acquittal at the conclusion of all the evidence. It is argued that the State's case rested entirely on circumstantial evidence, and the evidence introduced was as consistent with innocence as with guilt.
Preliminary to the consideration of defendant-appellant's contentions, it is necessary to make a general statement of the evidence.
There was evidence introduced tending to show that one Marguerite Dallmeyer is the proprietor of a business conducted at the 'Boathouse' located on the west side of Highway No. 94 in Boschertown, St. Charles County. The Boathouse, a store, is operated by Marguerite's husband, Helmuth. The Boathouse building is a one-story structure with attic and basement. The main floor is on the ground (highway) legal. On this floor the Dallmeyers conduct a retail store with merchandise consisting of motor boats, motors, marine supplies, hardware and fishing tackle. To the rear, the grade declines abruptly, and the basement fronts westwardly on a level approximately eleven feet below the main floor of the building. At the rear of the basement is a folding garage door which, when unused, is kept locked and barred. The building is also protected by a burglar alarm. The mechanism of the alarm is so connected that a window may be broken or a door opened without tripping the alarm--one must be inside and at a distance of several feet from the exterior walls to trip the alarm mechanism. The doors of the Boathouse had been locked and barred and the alarm device had been set by an employee of the Dallmeyers when he left the building between seven and seven-thirty in the evening of April 3, 1950.
An arrangement had been made between the Dallmeyers and one Hobart Halbruegge, a merchant who operates a store a short distance away across the highway, that should he, Halbruegge, hear the burglar alarm he was to notify the Dallmeyers.
At approximately 1:15 in the morning of April 4th, Halbruegge was wakened by the sound of the burglar alarm, and Helmuth Dallmeyer was notified by telephone. Helmuth called the police of the city of St. Charles and reported the alarm was sounding. He also went to the Boathouse. There he observed the door of the basement was ajar, and the lock and tubular iron bar of the basement door had been torn from their hangings. He saw that the basement door and the basement door frame had marks on them which he had not seen before (and the next day he also observed marks on a window, and on the lower sash and the lower part of a window frame).
The police department of St. Charles, upon notification of the circumstance that the burglar alarm was sounding, dispatched police officers to investigate. The officers took a position on a driveway in the north part of St. Charles with their patrol car facing Highway No. 94 at a point from which they could observe traffic traveling southwardly on the highway. In a few minutes, they heard a motor vehicle approaching from the north. The vehicle was moving at a high rate of speed. The vehicle's lights were turned off, but were turned on when the vehicle was 'within a block and a half of the (St. Charles) city limits.' The vehicle was a green Chevrolet pickup truck. The officers stopped the truck and placed the driver, defendant, under arrest for investigation in connection with burglary in Boschertown. They also arrested Carl Benton Drake Who was seated on the right in the truck cab.
After the arrest of defendant and Drake, the officers took possession of crowbars and screw drivers and other described articles which were lying on the floor of the cab of the truck. The officers took the crowbars and screw drivers to the Boathouse to ascertain if they fitted into the marks on the window, window sash and the door of the basement of the Boathouse building. Some of them did.
The crowbars and screw drivers were introduced into evidence, having been designated as exhibits in series, Nos. Q-1 to 7. Some pieces of wood, wooden splinters, a window sash, and a bolt or lag screw, parts of the windows and door of the basement, were also introcuced into evidence. These exhibits were designated as exhibits in series, Nos. K-1 to 6.
The Chevrolet truck belonged to William Landherr, Drake's employer, a contractor doing business advertised as 'Reliable Home Repairs.' The crowbars and screw drivers were identified by Landherr as belonging to him. He referred to the bars as 'wrecking bars.' Landherr testified that it was not unusual for his employee Drake to take the truck home and keep it overnight. The truck was quite commonly used by Landherr's employees.
Defendant, an excavating contractor. testified in his own behalf. He said he had been interested in buying a 'high lift,' a machine used in refilling excavations for sewers or drains. He knew of one of these machines which was located 'right (east) across the bridge.' He had been told the owner of the machine lived 'right out of St. Charles' and the owner's name would be on a mailbox. Carl Benton Drake came to defendant's home the evening of April 3d. Defendant asked Drake, who was driving the light Chevrolet truck, 'if he could drive me out there in the truck.' They completed their inspection of the high lift 'between eleven and eleven-thirty.' They then came west across the bridge, made a right turn and looked at the mailboxes endeavoring to locate the mailbox bearing the name of the owner of the high lift. They 'went down I would say four or five blocks.' They saw 'two or three' mailboxes; 'we didn't find this name and then we turned around on the highway and we started back and as we just entered town the officers stopped us.'
Some of the evidence will be more particularly stated in the course of the opinion.
(1) We have noted that the officers of St. Charles were investigating the sounding of the burglar alarm at the Boathouse. They had no warrant for the arrest of defendant, but they were acting on orders to investigate a report which supported the probability that a felony, burglary, had been committed at the Boathouse. They arrested defendant and Drake, who came from the area where the Boathouse is located a few minutes after the alarm at the Boathouse began sounding. Defendant and Drake were in a motor vehicle driven at a high rate of speed with the lights turned off. The lights were turned on only upon the near approach to the St. Charles city limits. There were reasonable grounds for suspicion that a person (or persons) in the vehicle was implicated in a burglary at the Boathouse.
There was no illegal arrest. The officers, police of St. Charles, are recognized as officers empowered to make arrests for State crimes. Although they have no warrant, they are justified in making an arrest upon reasonable cause (either on their own knowledge of the facts, or on facts communicated to them by others) to suspect the one apprehended is guilty of a felony. State v. Evans, 161 Mo. 95, 61 S.W. 590; State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43. In this case, there having been reasonable grounds for making the arrest, the officers had the right to search the truck and seize for use in evidence articles which tended to incriminate defendant. State v. Jonas, Mo.Sup., 260 S.W.2d 3. Our case is unlike State v. Cuezze, Mo.Sup., 249 S.W.2d 373, cited by defendant-appellant. There the arrest was on mere suspicion. The officers in that case had been directed to investigate three men who were in an automobile...
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