State v. Daniels

• Citation: 87 A.L.R.2d 1208,347 S.W.2d 874
• Decision Date: 10 July 1961
• Docket Number: No. 48391,No. 2,48391,2
• Parties: STATE of Missouri, Respondent, v. Walter Emmett DANIELS, Appellant
• Court: United States State Supreme Court of Missouri

Page 874

347 S.W.2d 874

87 A.L.R.2d 1208

STATE of Missouri, Respondent, v. Walter Emmett DANIELS, Appellant.

No. 48391.

Supreme Court of Missouri, Division No. 2.

July 10, 1961.

Gene R. Martin, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Richard Farrington, Special Asst. Atty. Gen., for respondent.

LEEDY, Presiding Judge.

Convicted under the habitual criminal act of the felony of stealing a motor vehicle, appellant (Walter Emmett Daniels, hereinafter referred to as defendant) prosecutes this appeal from the judgment sentencing him to five years' imprisonment in the penitentiary, that punishment having been determined and imposed by the trial judge under Sec. 556.280 and Sec. 560.161 (these and all other statutory references are to RSMo 1959 and V.A.M.S., unless otherwise noted). In the absence of a brief on defendant's part, we look to his motion for new trial for his assignments of error, and consider in chronological, rather than numerical, order such of them as are sufficient to preserve alleged trial errors for appellate review.

The motion for new trial assigns error 'in failing to sustain defendant's motion to declare a mistrial and to discharge the jury because of misconduct of a deputy sheriff who was assigned to keep the defendant under guard in wearing a side arm upon his person, open and visible to the jury,' the contention being that such 'conduct created an atmosphere prejudicial to the accused, and caused the jury to be prejudiced against, and apprehensive of the defendant,' etc. The motion to declare a mistrial was made upon the reconvening of court for the afternoon session on the first day of the trial following the empaneling and swearing of the jury to try the case at the morning session. After first asking that the rule as to witnesses be enforced (which was granted), defendant's counsel then sought to raise the present point in the manner following:

'Mr. Martin: One other matter before we proceed further, it's been called to my attention, Your Honor, that during the voir dire examination the deputy sheriff who has this defendant in charge has been in the court room with a side arm visible to the jury panel and everyone else. It has not been covered by clothing of any nature, no coat was worn, and it is defendant's contention [here followed assertions concerning the supposed resulting prejudice]. We ask that the jury--that there be declared a mistrial and this jury be discharged. (Emphasis supplied.)

'The Court: Overruled.'

Such is the record before us, so that (no evidence having been offered on the hearing of the motion for new trial) the only factual support for the assignment now under consideration appears inferentially (if at all) from defendant's counsel's foregoing objection or oral motion to declare a mistrial. Of course, an objection does not constitute evidence of the facts stated in it. Nor do we know whether the court's ruling was or was not based on its own knowledge of facts contrary to those thus asserted. But if the record be deemed sufficient to support the inference that the deputy sheriff did, in fact, wear a weapon in the manner claimed, we think such circumstance, standing alone, and in the absence of facts pointing more directly to probable prejudice, is insufficient whereon to predicate reversibe error. 'While care should be taken to prevent the creation of an atmosphere prejudicial to [the] accused, courts may take all reasonably necessary precautions for the maintenance of order during the progress of a trial * * * and for the retention of the custody of an accused (citing cases) * * *.' State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 31.

We turn now to the challenge of the sufficiency of the evidence to make a case, or to support the verdict. Briefly summarized, the state's evidence was to the following effect: Mrs. Louise DeKeyser left her 1955 Chevrolet sport coupe parked (with key in switch in accordance with custom) in the attended parking lot at Gaetano's Restaurant, 5th & Oak Streets, in Kansas City, about 6:55 p. m., on July 22, 1959. She and her 16-year-old son went inside, ate dinner, and returned to the lot about an hour later, and found the car was missing. Thirty minutes earlier the attendant had noticed it being removed by a young man whom he at first mistakenly took to be the owner's son. About 10 p. m., this car was proceeding northwardly on old Highway 169 when in negotiating a curve near Nashua it went off the pavement, struck a utility pole and stop sign and came to rest near a structure adjacent to the highway which served as a filling station, grocery, and dwelling. The occupants heard the crash, got up, dressed and went outside to investigate. They found the car to be facing south--the opposite direction from which it had been travelling; defendant was sitting on the ground beside it, holding his side, and complaining that both his side and arm hurt. He appeared to be 'excited and dazed.' The right side of the car had been completely sheared off; the top was damaged, and the door on the driver's side was bent open. 'The whole car was a total loss.' Later defendant stood up, and was holding his side and leaning against the car, when someone suggested that the patrol be called, whereupon he walked off up the road. Subsequently, two other neighbors who had heard the crash detected defendant walking between their houses, and they returned him to the scene.

When questioned by a patrolman at the scene, and as accounting for his presence there, defendant stated he had been hitchhiking, and had been picked up by someone else who was driving the car. When asked where the driver was, defendant stated that when the car struck the utility pole the driver got out and ran away. He was unable to furnish a description of the supposed driver. A search of the surrounding territory was made, and inquiries directed to the persons assembled at the scene, as to any other person that might have been in the automobile, but without avail. Two police officers testified, without objection, that on the next afternoon they were returning defendant to Kansas City from the Clay County jail, and during the course of the trip defendant told them he arrived in Kansas City on the 20th of the month, and had been staying at the Congress Hotel on 9th Street; that he had been doing some drinking, and that 'on the 22nd he decided to leave town, that he went down to the hotel, checked out of the hotel, took his clothing and started walking north down towards 5th Street * * * when he got down around the vicinity of 5th and Oak he observed this car parked with the keys in the ignition and he decided to take the car. He got in the car and drove across the Intercity Viaduct to Kansas City, Kansas, * * * where he had some more drinks, and he then left there and drove * * * across Fairfax Bridge, on north out of Kansas City, Kansas, * * * stopped * * * and had some more drinks, and then he started north * * * thought he was on 71 Highway. He was planning to drive north to St. Joseph, Missouri, and apparently got on the wrong road, and * * * he couldn't recall anything that caused the accident he was involved in or any part of the accident.'

Defendant did not testify, but offered two other witnesses--a colored parking lot attendant at Gaetano's, and one of the men who lived above the filling station at Nashua, part of whose testimony appears in the foregoing statement. Neither witness disputed or rebutted any material fact connecting defendant with the crime charged.

The foregoing outline of the evidence is sufficient to demonstrate that the court did not err in submitting the question of defendant's guilt to the jury, and that the verdict of guilty is amply supported.

The court permitted the owner to show that the value of the stolen car was $1,295 or $1,300. This was objected to on the grounds of irrelevancy and immateriality and 'as an attempt to inflame the minds of this jury.' The objection should have been sustained for the reason that under subdivision (2) of subsection 2 of Sec. 560.161, if the property stolen consists of a motor vehicle, then, regardless of its value, the offense is a felony. But it does not follow that because of the admission of proof of value, the defendant was thereby prejudiced. On the contrary, in the circumstances of this record, we deem it to be harmless error. As was said in State v. Alberson, Mo., 325 S.W.2d 773, 776 (a prosecution under the statute here involved for stealing a motor vehicle), '[T]he showing as to the monetary value of the car could have had no effect, in a legal sense, upon the issues in the case, and this being true, it follows there could have been no resulting prejudice to defendant.'

Defendant sought to cross-examine Mrs. DeKeyser for the purpose of impeachment, as to her answer in a deposition in relation to what the attendant said to her (concerning the disappearance of the car) when she returned to the parking lot and discovered the car was gone. This on the theory that such answer conflicted with her testimony on direct examination at the trial in relation to that subject. We do not regard the matter as being of enough consequence to justify developing the details of the incident, it being sufficient to say that the proposed impeachment went to a purely collateral matter, and hence to be limited in the discretion of the trial judge. No abuse of discretion...