State v. Burney

• Decision Date: 27 September 1940
• Docket Number: 37069
• Citation: 143 S.W.2d 273,346 Mo. 859
• Parties: The State v. Mrs. Bessie Burney, Appellant
• Court: Missouri Supreme Court

143 S.W.2d 273

346 Mo. 859

The State v. Mrs. Bessie Burney, Appellant

No. 37069

Supreme Court of Missouri

September 27, 1940

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

J G. Gustin for appellant.

(1) The court erred in overruling defendant's motion to suppress evidence obtained in violation of her constitutional rights against unreasonable search and seizure. Mo. Const., Art. II Secs. 11, 23; State v. Locke, 302 Mo. 400, 259 S.W. 116; State v. Owens, 302 Mo. 348, 259 S.W. 101; State v. Raines, 98 S.W.2d 584; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Henderson v. United States, 12 F.2d 530. (2) The court erred in overruling defendant's motion for new trial, because: There was no substantial credible evidence of the guilt of the defendant. The verdict is against the law and the evidence and against the law under the evidence. There is a complete and total absence in this record of proof of the corpus delicti. A criminal intent is not established, even prima facie, by evidence that a bullet was fired into a dwelling house. Such an act, to be criminal, must be both willful and malicious. R. S. 1929, sec. 4031. And the burden is on the State to establish that a crime has been committed before the jury may inquire into who committed it. State v. Gilman, 329 Mo. 306, 44 S.W.2d 146. Proof of the corpus delicti means the introduction of sufficient evidence to establish the fact that a crime has been committed. State v. Wheaton, 221 S.W. 205. (3) The previous quarrel between the parties and threats alleged to have been made by defendant. That by the law of probability the expert opinion connected the bullet with defendant's pistol. That the shot was fired from the direction of defendant's place. These premises could all be true and defendant still be entirely innocent of the charge. State v. Carter, 36 S.W.2d 145; State v. Eklof, 321 Mo. 548, 11 S.W.2d 1033; State v. Wilson, 136 S.W.2d 996; State v. Pritchett, 327 Mo. 1142, 39 S.W.2d 749. And the law does not require the defendant to establish her innocence or to explain away facts merely because they raise a suspicion of guilt. This rule has been stated and restated times without number by this court. State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79; State v. Shields, 332 Mo. 280, 58 S.W.2d 297; State v. Perkins, 18 S.W.2d 8.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The court did not err in overruling defendant's motion to suppress the evidence in reference to the gun handed to the deputy sheriff. State v. Wright, 77 S.W.2d 462, 336 Mo. 135; State v. Tull, 62 S.W.2d 392, 333 Mo. 152; State v. Bliss, 18 S.W.2d 509; State v. Allen, 251 S.W. 69. (2) Appellant in her point number 2, in her motion for new trial alleged the court erred in allowing the evidence concerning the pistol to be introduced but she abandoned this point in her brief, and for that reason is not reviewable by the court. State v. Huett, 104 S.W.2d 252, 340 Mo. 934; State v. Reagan, 108 S.W.2d 252; State v. Goffstein, 116 S.W.2d 65, 342 Mo. 499; State v. Kenyon, 126 S.W.2d 245. (3) The trial court did not err in refusing a continuance as set out in point 2 of appellant's brief. State v. Pyle, 123 S.W.2d 166; State v. Jackson, 102 S.W.2d 616; State v. Messino, 30 S.W.2d 759, 325 Mo. 743. (4) Appellant's assignments of error numbers 4, 5, 6 and 7 in her motion for new trial and point 3, subdivided 1 and 2 in her brief, is insufficient for review. Sec. 3735, R. S. 1929; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Copeland, 71 S.W.2d 750, 335 Mo. 140; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066.

OPINION

Ellison, P. J.

The appellant, Mrs. Bessie Burney, was convicted in the circuit court of Greene County of wilfully and maliciously shooting a pistol into the dwelling house of her neighbor, Mrs. Anna Stacey, a felony under Sec. 4031, R. S. 1929, Mo. Stat. Ann., p. 2838. The punishment assessed by the jury was imprisonment in the county jail for six months and a fine of $ 200. On this appeal she assigns three errors: (1) that the trial court overruled her motion to suppress evidence (namely, her pistol) obtained by the State through an unlawful search of her premises without a search warrant and before she was arrested: (2) because her application for a continuance was overruled; (3) and that the evidence was insufficient to support the verdict.

On the motion to suppress evidence the appellant testified that on the night of Saturday, August 12, 1939, she was in bed and heard a noise by her front gate, which was locked and about 50 feet from her house. There were two (automobiles) carloads of people out there and they wanted in. She went out and let them in. They said they were officers and after all had proceeded half way to the house they inquired "Have you got a gun?" She answered "Yes" and they said "Can we see it?" She replied "Certainly." The party went into the house and she produced a .25 calibre automatic revolver from under the pillow on her bed and handed it to one of the deputy sheriffs, who put it in his pocket. He said, "Well, we will have to take you down." Then they arrested her without a warrant and against her will. The pistol was taken before the arrest, and appellant asserted the officers did not inform her of any charge against her.

But on redirect examination she was asked if "prior to this time (which we understand to mean the occasion of her arrest) she had heard anything about anybody shooting into the Stacey house, or any house," and she answered she "never heard about it any except from the officers." She further declared she didn't understand the pistol would be used as evidence against her, but on recross-examination in answer to a question whether she "parted" with it voluntarily, she replied, "I handed it to them voluntarily, and they put it in their pocket; I gave it to them willingly because I respect the law, I was raised to respect the law."

From the testimony of the deputy sheriff who made the arrest it may be inferred he was a little more peremptory in seeking entrance to the premises than would appear from appellant's own testimony. But there is nothing in his narrative to indicate he made a demand to see her pistol, though he did answer affirmatively on cross-examination a question in which that word was used. He further said he asked her "if she had been shooting around there and she said no." This witness also declared that appellant was fully dressed when she came out to the gate. (She had testified she was in bed when the officers called.) The sheriff arrived at appellant's home after the other officers but before the arrest. He said she informed him she had already turned her pistol over to the deputy sheriff, and (either that night or the next day at the jail) she told him he could keep it.

Appellant contends the search for and seizure of her pistol were illegal because done without a search warrant and prior to her arrest, not as an incident thereto. For the purposes of the case we may concede this to be true unless she voluntarily consented. On the latter point appellant cites State v. Owens, 302 Mo. 348, 358, 368, 259 S.W. 100, 102(3), 105(6), 32 A. L. R. 383, a decision by this court en banc, which holds: "If an officer appears at a person's home, and in his official character demands the privilege of seaching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference. . . . If the officer enters the dwelling of one not charged with a crime, and by stealth or forcibly without a warrant or any legal authority obtains papers of an incriminatory nature, it is almost universally held that such papers may not be produced in evidence."

But in that case a sheriff walked up to a man on the street and forcibly searched him, taking a bottle of whiskey from his pocket. The sheriff testified the man "never hollered nor made no big noise." Contrast that with the instant case where appellant herself testified that when the deputy sheriff asked her if they could see her pistol, she replied "Certainly," led them into the house and produced it from under her pillow. Later she declared "I handed it (the pistol) to them voluntarily, and they put it in their pocket; I gave it to them willingly because I respect the law . . ." In addition to that the sheriff testified appellant told him she had already turned her pistol over to the deputy sheriff, and either the night of her arrest or the next day consented that he keep it.

As regards the question whether the officers obtained the pistol by stealth or trickery, the appellant admitted the officers told her they were officers before she led them into the house; and under redirect examination by her own counsel she said she had never heard anything about anybody shooting into the Stacey house or any house, "except from the officers." The deputy sheriff declared he asked her "if she had been shooting around there and she said no." He also asked to see her pistol. This was enough to indicate to appellant that she was under investigation for some shooting into the Stacey house, though there was no direct accusation of it. We think there was substantial evidence that she voluntarily produced the pistol and consented to its retention by the sheriff's office. In that state of the record it was the duty of the trial court to pass on the questions of fact raised by appellant's motion to suppress and the testimony introduced thereunder. We see no ground for overturning the ruling made -- in other words we cannot say the ruling was not supported by substantial evidence, or, for that matter, by the weight...