State v. Engberg
| Decision Date | 09 March 1964 |
| Docket Number | No. 2,No. 50186,50186,2 |
| Citation | 377 S.W.2d 282 |
| Parties | STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant |
| Court | Missouri Supreme Court |
Dale Beal, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, Clarence Bradley Mitchell, Sp. Asst. Atty. Gen., Kansas City, for respondent.
This is an appeal from a conviction of robbery in the first degree. The court found that the defendant had been convicted of a prior felony and assessed punishment at twenty years in the penitentiary. The defendant's motion for new trial was overruled and he was sentenced in accordance with the punishment assessed. The defendant was ably represented in the trial court by appointed counsel, Mr. Dale Beal, who also briefed the appeal in this court.
The evidence favorable to the verdict tends to prove that on June 7, 1962, at about 1 a. m., two men, who were later identified as the defendant and Jack Lamphere, entered the Club Bar located at 11 East 31st Street in Kansas City as the bartender Albert Grotzinger, alone in the Club, was sweeping the floor preparing to go home. The defendant stuck a gun into Mr. Grotzinger's ribs and required him to open the cash register. The defendant and Lamphere took the cash, two electric razors, and two fifths of Jim Beam whiskey. The robbers then put the bartender in a rest room and braced the door shut with a chair. The bartender forced the door open and called the police. At the trial he positively identified the defendant as the robber who held the gun against him.
Lamphere and two women companions, Joanna Wallace and Charlotte Martin, were arrested the following day in Kansas City. The defendant was captured in Denver, Colorado, and returned to Kansas City on June 29, 1962. The defendant admitted to the officer who brought him back from Denver that he had registered at a certain motel in Kansas City under the name of Walter Johnson. He was accompanied by Lamphere and the two women. He also identified the registration care as filled out and signed by him. Mrs. Wallace testified that she and Charlotte Martin waited outside in an automobile while the defendant and Lamphere entered the Club Bar. When the men returned, the defendant had a revolver in his belt and got into the front seat with the two women. Charlotte Martin drove the automobile. Lamphere got into the rear seat and crouched out of sight on the floorboards of the automobile as they drove away. The defendant did not testify, but put on a police officer who testified regarding the robbery report and statement given the police by the bartender. Other matters will be referred to in connection with the questions presented.
The original information was filed on July 6, 1962, and on July 9, 1962, another attorney was appointed to represent the defendant, but the record does not show when or how he got out of the case. Present counsel was appointed on February 28, 1963, and on April 4, 1963, he filed a motion for a ninety-day continuance which the court overruled. In general, the grounds were that unfavorable newspaper publicity had made it impossible for the defendant to obtain a fair and impartial jury for the trial of the case, that defendant's counsel had been notified on March 21, 1963, that five additional witnesses would be endorsed on the information by the state, that defendant's counsel did not know definitely until April 1 that this case would be tried before another one on the docket, that the state intended to amend the information so as to proceed under the Habitual Criminal Act, that counsel for the defendant being engaged chiefly in civil practice did not have sufficient time to prepare the criminal case for trial, and that he had been unable to contact some of the the witnesses endorsed on the information although he had made a diligent effort to do so.
An application for a continuance in a criminal case is addressed to the sound discretion of the trial court and the appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. Scott, Mo., 338 S.W.2d 873, 876; State v. Le Beau, Mo., 306 S.W.2d 482, 486. The defendant offered in evidence about 29 clippings from Kansas City newspapers dealing with this and other offenses with which the defendant had been charged. Most of the articles had been published in June and July 1962, which was about ten months prior to the trial.
What constitutes unusual or extraordinary circumstances sufficient to entitle the accused to a continuance on the ground of excitement and prejudice against the accused is ordinarily a question addressed to the sound discretion of the trial court. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 111-113. See also 68 A.L.R.2d 540. Any doubt about the trial court's ruling is dissipated by the record of the examination of the jury panel on voir dire. The court excused veniremen about whom there was the slightest doubt, and no difficulty was encountered in selecting a qualified jury.
The prosecutor in a criminal case should not delay unnecessarily in endorsing the names of witnesses on the information or in offering an amended information for filing, but the trial court has a wide discretion in determining whether the prosecutorhas done so and has thereby put the defendant to a disadvantage and deprived him of a fair trial. State v. Thost, Mo., 328 S.W.2d 36, 38.
The traditional duty of members of the bar to accept appointment to represent indigent defendants in criminal cases requires mutual cooperation between the court and counsel. The record does not show any abuse of this practice or that the rights of the defendant were prejudiced. The defendant was effectively represented by his court-appointed counsel. The court did not err in refusing to sustain the motion for a continuance. State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 758; State v. Bockman, Mo., 251 S.W.2d 607, 608.
The defendant prior to trial filed a motion to suppress articles held as evidence consisting of two bottles of Jim Beam whiskey and two electric razors which were found in the motel room where the defendant had registered as Walter Johnson. No evidence was offered when the motion was heard and it was overruled. At the trial the whiskey and razors were identified as articles taken in the robbery of the Club Bar. Before they were offered, the defendant in chambers again objected to their admission in evidence and was again overruled. The ground of objection was that their seizure was in violation of defendant's constitutional rights under Art. 1, Sec. 15, of the Missouri Constitution, V.A.M.S., and Amendment IV of the United States Constitution, in that the articles were not taken from the person of the defendant but from others who relinquished them because of fear and not voluntarily; that they were not obtained as an incident of a lawful arrest and were not in plain sight but searched for and seized without a valid search warrant. The state's evidence showed that the defendant and his companions arrived at the motel on June 6 and the rent was paid through 7. When police officers went to the motel on June 8, Mrs. Joanna Wallace was the only person present and she was arrested. The defendant and his other companions, Jack Lamphere and Charlotte Martin, never returned to the motel.
The evidence is uncontradicted that the articles sought to be suppressed were found on a dresser top in plain view and were not located by means of a search. See State v. Reagan, Mo., 328 S.W.2d 26, 28. There is no evidence that anyone was put in fear or coerced by the seizure. The defendant was in flight at the time and there is no showing or contention that the motel room was his abode when the police took possession of the articles. The officers entered the room where the articles were found by means of a key obtained from the person in charge of the motel. It is not contended that the arrest of Mrs. Wallace in connection with the robbery was unlawful. The police officers were on the premises lawfully and had the right to take possession of articles in the motel room which had an evidentiary value. State v. Redding, Mo., 357 S.W.2d 103, 107; State v. Brookshire, Mo., 353 S.W.2d 681, 684-685. The fact that the officers did not take possession of the articles at once and tag them as evidence is of no consequence; they were immediately observable and were not discovered by means of a later search. The police simply waited around to see if the defendant would return which he did not.
The guaranty against unreasonable search and seizure is a personal one and, since it appears that the defendant had no possessory rights either in the premises or the personal property at the time the...
To continue reading
Request your trial
-
State v. Achter
...668 (1960) (abandoned apartment); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (open field); State v. Engberg, 377 S.W.2d 282 (Mo.1964) (motel). Such an abandonment is primarily a question of intent and all relevant circumstances existing at the time of the allege......
-
State v. Drake
...unreasonable search and seizure is personal. Alderman v. U.S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1967), and State v. Engberg, 377 S.W.2d 282 (Mo.1964); State v. Thompson, 490 S.W.2d 50 (Mo.1973). In Alderman v. U.S., supra, it was said, 394 U.S. l.c. 174, 89 S.Ct. at 'We adhere . ......
-
State v. Sallee
...S.W.2d 596, 597(1); State v. Chevlin, Mo., 284 S.W.2d 563, 567(11); State v. McWilliams, Mo., 331 S.W.2d 610, 613(6).' State v. Engberg, Mo.Sup., 377 S.W.2d 282, 286(11). '* * * if a defendant wants a converse instruction given, he must formulate and offer a proper one. State v. Boyd, 354 M......
-
State v. Smith
...requested or not. Hence, if a defendant wants a converse instruction given, he must formulate and offer a proper one.' State v. Engberg, Mo., 377 S.W.2d 282, 286(11). Whether defendant had the care and control of Sandy was a disputed issue in the case. Although given Instruction 3 covered t......