State v. Durham, 50797

Decision Date08 February 1965
Docket NumberNo. 2,No. 50797,50797,2
PartiesSTATE of Missouri, Respondent, v. Donald Eugene DURHAM, Appellant
CourtMissouri Supreme Court

Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.

Weldon W. Moore, Rolla, for appellant.

EAGER, Judge.

Defendant was convicted of burglary and stealing in the Circuit Court of Phelps County; upon a finding of prior felonies he was sentenced to a term of eight years for the burglary and four years for the stealing, the terms to run consecutively. Upon appeal to this Court the judgment was affirmed. 367 S.W.2d 619. The facts and circumstances surrounding the crime are set out in detail in that opinion. The present appeal is from an order of the Circuit Court denying a motion to vacate that judgment under our Rule 27.26, V.A.M.R., no evidence thereon having been heard. The defendant is represented here by counsel who has filed a brief and argued the case orally. Only one point is raised on this appeal, namely, that defendant's rights under the Fourth Amendment to the United States Constitution were violated by an illegal search of his automobile and the seizure of property therefrom, and that the trial court erred in overruling his motion to suppress that evidence. The facts are stated fully in our opinion on the original appeal, but we recite them very briefly here. Within less than twelve hours after the burglary in question, and on March 28, 1962, two Illinois Highway Patrolmen in a community near East St. Louis noticed a 1954 Plymouth being driven with its rear license plate partially obscured; they stopped the car and Trooper Morgan told the driver, one Hacker, that he was under arrest for improperly displaying the license plate. The officer at that time saw through the car window a new radio with a pricemark on it, and a display carton of new screwdrivers. These were on the back seat and, according to the officer, were out in the open. The driver showed his license and got out of the car; the officer asked him to open the trunk which he did. Nothing of any consequence was found there. The officer then asked the other two men, defendant and one Willis, to come to the rear of the car, so that the other officer could watch them. At that time the first officer searched the car, removing a blanket from a large 'hump' of material on the floorboards behind the driver, the top of which was about on a level with the rear seat, and he also looked under the seat for 'weapons.' Under the blanket he found various power saws, drills, etc. These were the articles which defendant sought to exclude from evidence; they were all shown to be items taken in the burglary of the Newberg Lumber Company at Newberg Missouri, early that same morning. When Hacker opened the door of the car, a corner of the pile of tools under the blanket was exposed to the officer's view. Defendant, sitting on the right of the front seat, had shown the officer the registration of the car and had told him that he (the defendant) was the owner; this occurred after the arrest of Hacker but before the search of the car.

The officers had Hacker drive this car and the occupants to the police station, following theirs. On the way there, they saw defendant throw out some paper or 'refuse'; at that time they stopped and arrested him for 'littering' the highway. At the station the tools and radio were removed and marked; the...

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12 cases
  • State v. Witherspoon
    • United States
    • Missouri Supreme Court
    • December 14, 1970
    ...258 F.Supp. 452 (E.D.Mo.1966), aff'd 368 F.2d 989 (8th Cir. 1966), cert. den. 390 U.S. 959, 88 S.Ct. 1054, 19 L.Ed.2d 1154; State v. Durham, 386 S.W.2d 360 (Mo.1965), cert. den. 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94; State v. Durham, 367 S.W.2d 619 (Mo.1963), cert. den. 375 U.S. 861, 84......
  • Parker v. Swenson
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 30, 1971
    ...be considered under Rule 27.26. State v. McMillian, 383 S.W.2d 721 (Mo. 1964); State v. Statler, 383 S.W.2d 534 (Mo.1964); State v. Durham, Mo., 386 S.W.2d 360, cert. denied 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94 (1965); State v. Brown, 461 S.W.2d 743 (Mo.1971); Keeny v. State, 461 S.W.2......
  • State v. Caffey
    • United States
    • Missouri Supreme Court
    • September 14, 1970
    ...Engberg, Mo.Sup., 391 S.W.2d 868; State v. Worley, Mo.Sup., 383 S.W.2d 529, 533; State v. Kackley, Mo.Sup., 391 S.W.2d 350; State v. Durham, Mo.Sup., 386 S.W.2d 360, cert. den. 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94, and State v. Howe, Mo.Sup., 364 S.W.2d 546, cert. den. 373 U.S. 943, 83......
  • State v. Engberg
    • United States
    • Missouri Supreme Court
    • June 14, 1965
    ...a matter as may be raised in a collateral attack upon a judgment of conviction. State v. Worley, Mo., 383 S.W.2d 529, 533; State v. Durham, Mo., 386 S.W.2d 360, 362; State v. Howe, Mo., 364 S.W.2d 546, certiorari denied 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698. No such question was raise......
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