State v. Carenza

• Decision Date: 14 June 1948
• Docket Number: 40685
• Parties: State v. Sam Carenza, Appellant
• Court: Missouri Supreme Court

212 S.W.2d 743

357 Mo. 1172

State v. Sam Carenza, Appellant

No. 40685

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Affirmed.

Ben J Weinberger for appellant.

(1) Evidence obtained through unlawful search and seizure should be excluded and property returned upon motion to suppress. The court erred in admitting such evidence and overruling motion to suppress and return property. Art. 1, Sec. 15, Const. Mo. 1945, of the 5th Amendment of the Constitution of the United States. State v. Wilkerson, 349 Mo. 205; State v. Richards, 344 Mo. 485; State v. Randazzo, 318 Mo. l.c. 764; State v. McBride, 327 Mo. 184; State v. Park, 322 Mo. 69; State v. Horton, 312 Mo. 202; State v. Owens, 302 Mo. 348; State v. Locke, 302 Mo. 400; State v. Tunnel, 302 Mo. 433; 24 A.L.R., p. 1417; 13 A.L.R., p. 1168. (2) Compulsory self incrimination is unlawful and must be excluded as evidence. The court erred in the admission of same. Sec. 19, Art. 1, of Constitution of Mo. 1945, 4th Amendment U.S. Constitution, 5th Amendment U.S. Constitution. (3) Evidence of defendant's fingerprints unlawfully taken must be excluded. Motion to suppress should have been sustained. The court erred in failing so to do. Sec. 4184-87, R.S. 1939; State v. Baldwin, 317 Mo. 759, l.c. 780; People v. Van Cleve, 276 P. 641, 63 A.L.R. 1325; People v. Hevern, 215 N.Y.S. 412, 63 A.L.R. 1325. (4) Statutes having described the person whose photographs and fingerprints may be taken excludes the taking of any other person, particularly appellant's. 59 C.J. 984; Secs. 4184-87, R.S. 1939; State v. Baldwin, 317 Mo. 759; State v. Sweany, 195 S.W. 714; Sutherland on Statutory Construction, sec. 327; Ex parte McCardle, 74 U.S. 506; Johnson v. Ry., 117 F. 462; Johnson v. Baker, 139 P. 87; Kincade v. Beechi, 164 N.E. 199; People v. Deutsche, 94 N.E. 162; Pierce v. Bekins, 172 N.W. 101; Van Sweeden v. same, 230 N.W. 191; In re Bailey Estate, 103 P. 232; Miholland v. Stanton, 231 S.W. 332. (5) The taking of fingerprints and photographs is a part of the Bertillon Signaletic System. Am. Ed. Dr. Bertillon's Book (1896), 79-a-79-h. (6) It is unlawful to take finger-prints of persons not convicted of felony. Secs. 4184-87, R.S. 1939; State v. Baldwin, 317 Mo. 759. (7) Upon showing made of surprise it was error to refuse continuance. State v. Broyles, 317 Mo. l.c. 280; State v. Peters, 258 Mo. l.c. 343; State v. Whitsett, 232 Mo. l.c. 526; State v. Cook, 3 S.W.2d l.c. 367; State v. Nettles, 156 Mo. 464; State v. Steifel, 106 Mo. l.c. 133. (8) Co-defendant is incompetent to testify against defendant after agreement reached with state to testify against defendant, and should have been excluded. State v. Miller, 100 Mo. 606.

J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) Appellant's motion to suppress evidence was properly overruled. State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Williams, 328 Mo. 627, 14 S.W.2d 434; State v. Wright, 336 Mo. 135, 77 S.W.2d 459; State v. Hall, 231 S.W. 1001. (2) Photographs of the appellant's fingerprints, voluntarily given, were properly admitted. State ex rel. Reed v. Harris, 348 Mo. 426, 153 S.W.2d 834. (3) There was no showing of surprise in the introduction of an accomplice of appellant. State v. Miller, 100 Mo. 606, 13 S.W. 832.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Defendant was found guilty of murder in the first degree for killing Otto Kopp in Manchester, St. Louis County on April 6, 1946. The jury fixed the punishment at imprisonment in the penitentiary for life, and defendant appealed.

Deceased, about 71 years old, operated a combination drug and grocery store in Manchester, and lived alone over his place of business. On the night of April 6, 1946, deceased was robbed and beaten. His dead body, taped and tied and with gag in the mouth, was discovered in his living room on Sunday morning, April 7th. April 13th, Sebastian Joe Tomorchio, Roy Rosario Finocchiaro, and defendant were arrested and charged with the murder.

Error is assigned (1) on overruling motion to suppress; (2) on permitting Tomorchio to testify as a witness for the State; and (3) on denying a continuance.

It will not be necessary to extensively detail the facts. According to Tomorchio, who pleaded guilty to murder in the second degree and was used as a witness for the State, he, defendant, and Finocchiaro, in the latter's car, went from St. Louis on the night of April 6, 1946, to Manchester to rob deceased. Finocchiaro remained in the car as the get-away man. Defendant and Tomorchio went in the store and ordered 7-up drinks and defendant also called for a package of cigarettes. When deceased stooped to get the cigarettes from the show case, defendant struck him with his pistol. In the course of the beating, to make him tell where his money was, deceased was struck several times on the head. Tomorchio said that deceased told them that he kept his money in the bank. They obtained some money and Tomorchio's share was $ 25.00. Defendant turned off the lights in the store and deceased was carried upstairs and trussed up and gagged and left to die. All this occurred prior to midnight of April 6th and it was the opinion of the examining doctor next day, about 1:30 p.m., that deceased had been dead about 6 hours. Finocchiaro furnished Tomorchio a pair of gloves. One of these gloves was found in the store and the other one by the roadside where it was thrown as they were returning to St. Louis. Defendant's finger prints were found on one of the 7-up bottles on the soda fountain counter. A shoe heel impression was found on the bloody floor and this impression was similar to the heel of defendant's shoe.

Defendant testified in his own behalf. He denied any part in the murder of deceased. He said that on the night of April 6th he attended a picture show with his 8 year old daughter and was at home the remainder of the night.

Defendant was arrested in St. Louis in March, 1945, on some charge not shown, and his finger prints were taken on March 9, 1945. These finger prints were in evidence for comparison with the finger prints on the 7-up bottle. About 12:45 a.m. April 13, 1946, defendant was arrested at his home in St. Louis for the murder of deceased, and the police searched the house for a pistol, but did not immediately find one. Later a .45 caliber pistol was found and identified by Tomorchio as the pistol defendant used in beating deceased. The pistol was introduced in evidence and there was evidence that the wounds on the head of deceased were such as might have been made by beating deceased with this pistol. Also, the police found in defendant's house a pair of shoes, admitted to be defendant's, and it was the heel of one of these shoes that was similar to the heel print found on the floor of the store. Defendant filed motion to suppress the use in evidence of the finger prints and the pistol. The shoe heel was not included in the motion to suppress. Defendant's finger prints were also taken April 13th by the St. Louis police and April 15th by the State Patrol, after he was arrested. The motion to suppress was sustained as to the finger prints taken April 13th and 15th, 1946, but overruled as to the finger prints taken March 9, 1945, and as to the pistol.

Did the court commit error in overruling the motion to suppress as to the finger prints taken March 9, 1945? Defendant says his finger prints were taken in July or September 1945 by the St. Louis police, but not in March, and that he was certain as to that. John Boucher testified that he was a detective in the St. Louis police department; that on March 9, 1945, he took defendant's finger prints; that he asked defendant if he had previously been finger printed and that he said, "No. I haven't, you won't find a thing." Boucher was asked if he asked defendant if he objected to having his finger prints taken and answered that he did not recall, but that defendant "didn't object to being finger printed." Defendant does not claim that he made objections to taking his finger prints in March, 1945; he just says that his finger prints were not then taken. He said that when his finger prints were taken in July or September 1945, he did object; and that the police at that time tried to charge him with "taking money from a man under force", but that he was discharged. So far as appears here there was no objection by defendant to taking his finger prints March 9, 1945, therefore, no error was committed in overruling the motion to suppress as to these.

Did the court commit error in overruling the motion to suppress as to the pistol and in admitting the pistol in evidence? In testifying on the motion to suppress, Cornelius Powers, a member of the St. Louis police, testified that he took defendant "into custody" at defendant's home 2124 Marconi Avenue, St. Louis, about 12:45 a.m., April 13, 1946. When defendant was arrested a search of his home for a pistol was commenced, and the officers spent about 25 minutes at that time in the search, but no pistol was then found. Defendant was taken away, but policeman Scism remained at the premises. Powers returned about 8 a.m. and relieved Scism. Powers then remained at the premises until about 10:30 or 11 a.m. and was "continuously searching." Policemen Scism and Fitzgerald came about 10:30 or 11 a.m. with defendant's wife. Defendant had told the officers where his wife worked and Scism and others went there. Scism said that Mrs. Carenza agreed to go...