State v. Edmonson, 50037
| Decision Date | 14 October 1963 |
| Docket Number | No. 50037,No. 1,50037,1 |
| Parties | STATE of Missouri, Respondent, v. Edward EDMONSON, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
HOUSER, Commissioner.
Edward Edmonson, charged under Sec. 560.175, V.A.M.S., with driving, using and operating a motor vehicle without the permission of the owner thereof, and in the same information charged with four prior felony convictions, Sec. 556.280, V.A.M.S., as amended Laws 1959, S.B. No. 117, Sec. 1, was convicted of driving, etc., as charged. Punishment was assessed at a term of five years in the penitentiary, and judgment was rendered accordingly. Defendant appealed but filed no brief, so we examine the assignments of error in his motion for new trial. Supreme Court Rule 28.02, V.A.M.R.
Seven of the assignments of error relate to the alleged insufficiency of the evidence.
The state's evidence tended to show these facts: The owner of a 1963 Chevrolet, a 'brand-new car,' parked it in the 1400 block on Singleton Street in St. Louis, at about 7:15 a. m., locked the ignition, the doors and windows, and walked to his nearby place of employment. Shortly before noon two police officers observed defendant driving the Chevrolet, i. e., steering it, as it moved or rolled along the street, pushed by another car. The Chevrolet was not running under its own power; it was rolling along as it was pushed; the motor was not running. The car doing the pushing was a 'quite old' Plymouth driven by a part-time employee of a service station. This looked peculiar to the police officers. Defendant 'just didn't look right.' The officers decided to check the automobile to see if it was a stolen car. The officers questioned defendant. When they began their inquiry the Chevrolet was at rest at the entrance of the service station. The right vent window was broken. The officers tried the key defendant had in the ignition but it would not operate the ignition, or work the locks on the trunk or the doors of the car. The officers noticed that there was a 'jumper' under the hood, an electric wire attached to the battery terminal and coil. A jumper enables a car to run without turning on the ignition by key. Defendant gave conflicting stories. First he said a Mr. Letner, eighth floor of the building on the southwest corner of 12th and Park, was the owner of the car; that Mr. Letner had directed defendant to take it to the service station to buy gasoline. The officer and defendant went to that building, but Mr. Letner's name did not appear on the building directory, and defendant admitted to the officer that Mr. Letner did not live there and that there was no need to go up to the eighth floor. Defendant was placed under arrest. After defendant was taken to the central district police station the officers checked the license plate, traced the name of the owner of the automobile, and received information that it was supposed to be parked in the 1400 block on Singleton. The owner, notified, came to the police station, identified the Chevrolet, and noticed that the vent window was damaged; that the right rear taillight was broken; that the license plate holder was bent, and that the speedometer showed that the car had been driven about 5 miles since it was parked that morning. The owner had not given defendant or any other person permission to operate the Chevrolet. In the owner's presence defendant admitted that he had driven and operated the car, and defendant then gave a different account of the manner in which he had come into possession of the car. His second story was that a friend named Ray had come by his house that morning driving the car; that defendant had presumed that it was stolen; that defendant had gone riding with Ray in the car; that Ray got out of the car and 'gave' it to defendant, saying, 'Here, you can have the car'; and that defendant was arrested shortly thereafter.
We are of the opinion that this evidence, if believed, made a case of driving, using and operating a motor vehicle without the permission of the owner, under Sec. 560.175, V.A.M.S. It was not necessary for the state to show that defendant knew the identity of the true owner of the vehicle, or knew that the person in possession of the automobile when defendant first came upon it was not the true owner, or knew that his activities in connection with the automobile were without the permission of the true owner, as claimed by the defendant. But defendant claims that the uncontradicted evidence shows that what he did was done 'with the permission of a person reasonably thought by defendant to have been the true owner of the automobile.' Without venturing an opinion on the question whether reasonable but mistaken understanding that the person giving permission to drive a motor vehicle was the owner would exonerate, the fact is that the state's evidence clearly shows that when 'Ray' appeared with the Chevrolet the defendant 'presumed' that the car was stolen. If the car was considered by defendant to have been stolen, Ray, who according to defendant gave him permission to drive it, reasonably could not have been considered the true owner. The evidence was sufficient to support the required finding of willfulness. 'Willfully' as used in the verdict-directing instruction means intentionally and not accidentally. The evidence plainly shows that defendant's acts were done with the intention of driving, using and operating the motor vehicle without the permission of the owner, and does not demonstrate 'accidental' driving. Defendant contends that guiding or steering an automobile along a public street while it is being pushed by another automobile does not constitute 'driving, using and operating' within the meaning of Sec. 560.175, V.A.M.S., but we hold to the contrary. It was not necessary for the motor to be running, the gears to be engaged or the vehicle to be running under its own power, as claimed. Any and all acts reasonably necessary to be performed in the movement of a motor vehicle from one place to another or fairly incidental to the ordinary course of its operation are encompassed within the meaning of the language 'drive, operate, [or] use,' as used in Sec. 560.175, V.A.M.S. That defendant was driving, using and operating the vehicle was proved not only by his act of steering and guiding under the described circumstances but also by his admission that he had driven and operated the car. There was no error in overruling defendant's motion for judgment of acquittal at the close of the state's case and at the close of all the evidence.
Defendant claims that the court should have dismissed the case and sustained his motion to suppress all evidence obtained by the state in connection with his arrest and detention, which is alleged to have been unlawful. The only bit of evidence claimed to have been improperly obtained was the admission of defendant at the police station within two hours after his arrest that he had driven and operated the automobile. The motion to suppress was based on two grounds: (1) that the officers under the circumstances surrounding this arrest 'had no...
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