State v. Davenport
| Decision Date | 08 October 1962 |
| Docket Number | No. 49068,No. 1,49068,1 |
| Citation | 360 S.W.2d 710 |
| Parties | STATE of Missouri, Respondent, v. Ralph DAVENPORT, Appellant |
| Court | Missouri Supreme Court |
Karl F. Lang, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., James A. Roche, Jr., Special Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted of possession of apparatus for the unauthorized use of narcotic drugs and sentenced to five years' imprisonment under the habitual criminal statute (Secs. 195.020, 195.200, 556.280; statutory references are to RSMo and V.A.M.S.) and has appealed.
Defendant's brief submits three points, one alleging error in refusing his motion for directed verdict, claiming the State's evidence was insufficient to prove that the alleged narcotics apparatus seized from the defendant was used to administer narcotic drugs or could have been used to administer narcotic drugs. Closely related thereto is defendant's claim of error in refusing to sustain his motion to suppress evidence introduced by the State, consisting of the alleged narcotic paraphernalia, contending that this evidence was obtained by illegal search and seizure. As hereinafter appears, this evidence was necessary to make a case for the jury. Defendant's other point claims improper limitation of cross-examination.
The State's evidence showed that Sergeant Nance, supervisor in charge of the area involved, with three cars and three beat men under him, while driving his patrol car to the intersection of Enright and Taylor, about 8:00 P.M., heard an alarm go off in a dry goods store on the southeast corner. He parked his car and after finding the front door was secured, tried to get to the rear of the building from Enright but had to come back and go through an alley leading there from Taylor. The rear door of the store was open and he found defendant standing inside the framework of the door. He arrested defendant for attempted burglary. Nance, before leaving his car, had called for dispatching a car to the scene and Officers Fink and Bovinette arrived in the alley to find Nance holding his gun and flashlight pointed at defendant who was at the rear of the store just inside of the doorway. The time they received the call was about 8:10 to 8:15 P.M. At Nance's direction Fink put his handcuffs on defendant and searched him. Fink said: 'In his left front trousers pocket I found a brown piece of wrapping paper, appeared to be wrapping paper, and had rubberband tied around it, and I took the rubberband off, and inside of the paper I found hypodermic needle that had a small wire inside of it, and I found teaspoon with the handles broken off, and I found two syringes, glass tubes, one had a black rubber bulb and one had a red rubber bulb, and one of the tubes was broken.' Fink further testified as to his interrogation of defendant: 'I said, 'Does this stuff belong to you?' and he said, 'Yes." Bovinette also saw the search and testified that defendant 'admitted they were his' and 'stated he used narcotics with those.' John Klosterman, Police Chemist, testified that the teaspoon taken from the appellant's pocket had a residue of heroin on it, but that the substance on the other pieces of paraphernalia was too minute to conclusively identify. Klosterman also described the paraphernalia and told how it could be used for injection of narcotics. Defendant was arrested on November 22, 1960; and thereafter he was tried on a charge of burglary and acquitted.
Defendant testified he was working at Tyree's Confectionery, 4857 Maffitt, St. Louis; that he left there around 7:15 or 7:30 to buy shrimp; that he stopped at the Celebrity Bar at Delmar and Taylor and drank some beer; and that he was stopped by Officer Nance after he left the Bar and crossed to the east side of Taylor Avenue. He said Officer Nance took him to the rear of a building and had him pick up a brown envelope with the name 'East-on-Taylor Trust Company' printed on it; that Nance stuck the envelope in the appellant's pocket and that when Officer Fink searched him later he removed the package from his pocket. Defendant denied that the package was opened in his presence and also denied that he had ever admitted to the police officers that the package and its contents were his.
On objection to the testimony concerning the search of defendant and what was found, on the ground no legal arrest and on motion to suppress the evidence of what was taken, the court held a separate hearing and thereafter overruled the objection and the motion. The evidence on this hearing (testimony of Nance) was similar to that above stated, which thereafter was heard by the jury.
Defendant contends that it was error to overrule the motion to suppress and admit in evidence the articles found on defendant arguing that his arrest and the search were illegal because Nance did not have reasonable grounds to arrest him. He says his arrest was unlawful because Nance did not have reasonable grounds to believe that he had committed the felony of attempted burglary. Defendant cites State v. Cuezze, Mo.Sup. 249 S.W.2d 373, but in that case we said: We have a very different situation in this case, the front door of a store locked, a burglar alarm sounding and defendant found inside the framework of an open rear door in the alley. Our conclusion is that, under these circumstances, Nance did have reasonable grounds to believe that defendant had committed or was attempting to commit a felony and therefore the arrest was lawful and defendant was lawfully searched. See State v. Cantrell, Mo.Sup., 310 S.W.2d 866, 869, 870, followed in State v. Pruett, Mo.Sup., 342...
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State v. Phelps
...under which the search and seizure was made was competent evidence. State v. Cochran, Mo., 366 S.W.2d 360, 362[3, 4]; State v. Davenport, Mo., 360 S.W.2d 710, 711; State v. Hands, Mo., 260 S.W.2d 14, 20; State v. Raines, 339 Mo. 884, 98 S.W.2d 580, 584-585; State v. Charles, supra; 22A C.J.......
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State v. Mitchell, 56908
...7). With respect to (b), the trial court was invested with discretion in determining the extent of cross-examination, State v. Davenport, Mo., 360 S.W.2d 710, and no abuse of such discretion is shown since the matter in question arose from cross-examination of a general defense witness as o......
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State v. Caffey, 53229
...v. Vollmar, Mo., 389 S.W.2d 20, 24; State v. Berstein, Mo., 372 S.W.2d 57, 59; State v. Witt, Mo., 371 S.W.2d 215, 218; State v. Davenport, Mo., 360 S.W.2d 710, 712; State v. Edwards, Mo., 317 S.W.2d 441, 445. Defendant relies on State v. Cuezze, Mo., 249 S.W.2d 373, wherein an arrest witho......
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