State v. Camper, 48836
| Decision Date | 12 February 1962 |
| Docket Number | No. 48836,No. 1,48836,1 |
| Citation | 353 S.W.2d 676 |
| Parties | STATE of Missouri, Respondent, v. Eugene Lovereture CAMPER, Appellant |
| Court | Missouri Supreme Court |
Simon & Pierce, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., Dale Reesman, Special Asst. Atty. Gen., for respondent.
HOUSER, Commissioner.
Eugene Lovereture Camper, charged with burglary second degree and stealing, was found not guilty of burglary second degree but guilty of stealing property of the value of at least $50 and his punishment was assessed at two years in the penitentiary. Defendant appealed but filed no brief, so we examine the seven assignments of error in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.
The information charged, inter alia, that on August 15, 1960 in Jackson County defendant unlawfully, feloniously, intentionally, and without the consent of the owner thereof, did steal two adding machines of the value of $800; four adding machines of the value of $490; one typewriter of the value of $75, (all described with particularity), of the aggregate value of $1365, the property of Atlanta Life Insurance Company.
The first assignment is error in failing to strike from the jury panel juror number 15 'who indicated by an outburst during the voir dire by defendant's counsel, extreme hostility toward the defendant and his counsel.' The record shows that defendant's counsel said in open court: 'Members of the panel, at this time, I wish to ask generally whether members of the panel understand the difference between civil cases generally and criminal cases, technically as to the amount of proof required?' Juror number 15 said: The judge then told the jurors to address their remarks to the Court and properly hold up their hand, and orally explained to the jury the difference between the requirement of a finding by a preponderance of the evidence in civil cases and beyond a reasonable doubt in criminal cases; asked if any member did not understand the difference and would not follow the instructions of the court at the close of the case, and stated that the State was obligation to prove guilt beyond a reasonable doubt; that it was not the duty of the defendant to prove himself innocent; that the jury would be instructed thereon at the close of the case. Thereupon defendant's counsel moved that juror number 15 be excused from the panel 'as indicating hostility towards counsel or defendant.' The court overruled, stating 'I did not understand it was hostile.' The record reveals no outburst or manifestation of hostility on the part of the juror and the trial judge, present and observing the entire incident, did not sense any hostility. The motion to excuse the juror was addressed to the sound discretion of the trial court. In the determination of the qualifications of a juror the court has a wide discretion, State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 8; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 654, and we find no abuse but rather a proper exercise of the court's discretion in this instance.
The second and third assignments charge error in failing to sustain defendant's motion to suppress evidence of a cash box found in the seat of the car, and to exclude from evidence the metal box and items taken from the car seat. Appellant gave no reason in his motion for new trial why the evidence should have been suppressed and excluded, but from his motion to suppress it appears his contention is that this was an illegal search and seizure made in violation of his constitutional rights. At 2:50 a. m. on the date in question Officer Davies, driving a patrol car, saw an automobile come out of an alley in the rear of 1900 Paseo in Kansas City at a 'pretty high rate of speed into the street and swerve.' After this car got 'straightened away into the street' the lights were turned on. The patrol car followed the other car for several blocks. Finally its driver pulled over to the side and parked. The patrol car stopped behind it. As Officer Davies opened the door of the patrol car two men or boys jumped out of the car ahead and fled. Two men remained in that car. Davies hollered to the fleeing men to stop, that they were under arrest, but they kept on running. Davies went to the car, and placed the two men in the car under arrest, for violation of traffic ordinances: driving in a careless manner and driving without lights. While Officer Davies was talking to defendant at the rear of the car, Patrolman Harkness looked into the interior of the car. In the center of the front seat he saw a little green cash box and two screwdrivers. After he saw the box he opened the door of the car, turned on his flashlight and looked 'all around underneath the car,' under the seat, etc., but discovered nothing more. Neither officer had any knowledge that a felony had been committed. Patrolman Harkness acted without a search warrant, and without gaining the consent of the defendant to check the car.
The constitutional guaranties against unreasonable search and seizure are not infringed where stolen property is recovered without search, i. e., where stolen property State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692, quoted with approval in an identical situation in State v. Reagan, Mo.Sup., 328 S.W.2d 26, 28, and again cited, along with the Reagan case and State v. Campbell, Mo.Sup., 262 S.W.2d 5, 9, in State v. Mallory, Mo.Sup., 336 S.W.2d 383, 385. And see 47 Am.Jur., Searches and Seizures, Sec. 20. As indicated in the Mallory case, there was no unreasonable search and seizure of the metal cash box, and no error in overruling the motion to suppress it as evidence. It was admissible in evidence, if properly identified. State v. Mallory, supra. Appellant's contention that the court erred in not excluding it from evidence, however, is without substance for the reason that the transcript does not reveal that the metal cash box was ever marked as an exhibit, offered or received in evidence.
The fourth and fifth assignments alleged...
To continue reading
Request your trial
-
Alcala v. State
...Delicti of Murder, 48 Va.L.Rev. 173; and VII Wigmore, Evidence, Section 2072, p. 401 (3rd Ed. 1940).2 For other cases see State v. Camper, Mo., 353 S.W.2d 676, 679; People v. Manzi, 38 Misc.2d 114, 237 N.Y.S.2d 738, 741; People v. Willard, 238 Cal.App.2d 292, 47 Cal.Rptr. 734, 743; and Stat......
-
McCutcheon v. State
...McMillan, 206 Kan. 3, 476 P.2d 612, 616.", and footnoted still other citations for this proposition, which citations are: State v. Camper, Mo., 353 S.W.2d 676, 679; People v. Manzi, 38 Misc.2d 114, 237 N.Y.S.2d 738, 741; People v. Willard, 238 Cal.App.2d 292, 47 Cal.Rptr. 734, 743; and Stat......
-
State v. Hall
...act or crime of far greater seriousness than that impelling the original arrest. State v. Eaton, 504 S.W.2d 12 (Mo.1974); State v. Camper, 353 S.W.2d 676 (Mo.1962); State v. McCarty, 460 S.W.2d 630 (Mo.1970); State v. McCarthy, 452 S.W.2d 211 (Mo.1970); State v. Edmonds, supra. But a violat......
-
State v. Aston, 51987
...had shoved under the seat. Under these circumstances, the search was reasonable and lawful as an incident to the arrest. State v. Camper, Mo., 353 S.W.2d 676; State v. Witt, Mo., 371 S.W.2d 215; State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441; State v. Carenza, 35......