State v. Harrington, 53491

• Decision Date: 31 December 1968
• Docket Number: No. 2,No. 53491,53491,2
• Citation: 435 S.W.2d 318
• Parties: STATE of Missouri, Respondent, v. James HARRINGTON, Appellant
• Court: Missouri Supreme Court

Page 318

435 S.W.2d 318

STATE of Missouri, Respondent, v. James HARRINGTON, Appellant.

No. 53491.

Supreme Court of Missouri, Division No. 2.

Dec. 31, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, James T. O'Brien, Asst. Atty. Gen., St. Louis, for respondent.

Blackford & Wilhelmsen, J. William Blackford, Kansas City, for appellant.

STOCKARD, Commissioner.

James Harrington was found guilty by a jury of carrying a dangerous and deadly weapon, a loaded pistol, 'concealed upon or about his person' and was sentenced to imprisonment for two years.

On the day of trial, and before the jury was selected and sworn, the state requested and was granted permission to insert the word 'concealed' in the information so that it alleged that on May 29, 1966 the defendant did 'have concealed on or about his person a dangerous and deadly weapon to-wit: a pistol.'

Defendant now contends that the trial court erred (1) in overruling his 'motion to dismiss before the trial' because the 'charge' on which he 'came to court' was only that he had on or about his person a deadly and dangerous weapon without alleging that it was concealed; (2) in permitting the amendment of the information at the time of trial; and (3) in refusing a preliminary hearing on the charge as amended.

The record shows that the charge upon which the preliminary hearing was held alleged that defendant had a deadly and dangerous weapon concealed on or about his person. After the preliminary hearing the prosecuting attorney was authorized to file an information, but the one filed did not state an offense. This was the same as not filing one. On the day of trial a proper information was filed by adding the word 'concealed,' and this information was consistent with the charge upon which the preliminary hearing had been held. Strictly speaking, this situation does not present the issue of whether an amendment to the information was authorized by Supreme Court Rule 24.02, V.A.M.R. The first and only sufficient information was the one filed on the day of the trial. After a proper and sufficient information was filed, counsel for defendant expressly stipulated that the record should show that 'he's arraigned, waives the reading of the information, and enters a plea of not guilty.' When asked by the trial court if he wanted a continuance, counsel replied 'No.' Under these circumstances none of the three contentions of defendant, set out above, have any merit.

Defendant next contends that the court erred in overruling his 'motion to suppress the evidence because of the illegal search and seizure of defendant.' It is necessary to set out the circumstances of the arrest and the subsequent search and seizure.

At 3:50 o'clock of the morning of May 29, 1966 Police Officer Leo Rhoden was dispatched to Tenth and Burlington Streets in North Kansas City to assist Police Sergeant Lee Jennings. When Officer Rhoden arrived at the scene there was a 1959 Oldsmobile with a Kansas license plate stopped near the intersection. Defendant was sitting in the front seat of the automobile behind the steering wheel. His companion was outside the automobile and 'staggering.' Officer Rhoden ordered Harrington out of the automobile. As he stepped out he too was 'staggering,' and when asked if he had been drinking, he replied 'yes.' Officer Rhoden testified that he 'then placed him under arrest for investigation of drunk,' and when he searched defendant he found a loaded pistol in the waistband of his Bermuda shorts concealed by his shirttail which was outside his shorts.

The evidence does not indicate that prior to the arrest Officer Rhoden had reason to believe that defendant had committed a felony, and merely being 'drunk' is not a misdemeanor. City of St. Joseph v. Harris, 59 Mo.App. 122. 'The offense of carrying concealed weapons is not usually regarded as committed in the presence of an officer where the weapon is not seen and could not be seen, by the officer, except by search of the person of the offender.' 5 Am.Jur.2d Arrest § 40, p. 731. We shall assume that the evidence does not establish a lawful arrest of defendant, and in that event there could no be no reasonable search and seizure in connection with the arrest.

It has long been the rule in this state that evidence obtained by means of an unlawful search and seizure by police officers is not admissible in evidence against the person searched where timely objection to the use of such evidence is made. State v. Cuezze, Mo., 249 S.W.2d 373; State v. Holt, Mo., 415 S.W.2d 761. The procedural rules of this state, with an exception not here material, require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. State v. Lord, Mo., 286 S.W.2d 737; State v. O'Brien, Mo., 252 S.W.2d 357, certiorari denied, 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Garrison, Mo., 305 S.W.2d 447; State v. Holt, supra. The validity of a search and the admissibility in evidence of the fruits of that search present issues collateral to the issue of guilt which are to be tried independently. State v. Dalton, Mo., 23 S.W.2d 1. 'Not only must defendant file a motion to suppress the controverted evidence, but he (has) the burden of presenting evidence to sustain his contentions.' State v. Holt, supra, 415 S.W.2d at p. 764; Supreme Court Rule 33.03(a)(5), V.A.M.R.; State v. Jonas, Mo., 260 S.W.2d 3. The only exception under our procedural rule is where the defendant 'had no reason to anticipate the evidence would be introduced and was surprised.' State v. O'Brien, supra, 252 S.W.2d at p. 359.

No motion to suppress evidence was made before trial. The first contention of an unlawful search and seizure was made when Officer Rhoden was asked to testify concerning the result of his search of defendant. The contention was renewed when the pistol and cartridges were offered in evidence. A motion to suppress evidence was filed at the 'close of all the evidence.'

By reason of the charge, defendant and his counsel necessarily had to know that it would be essential to the presentation of the state's case to have Officer Rhoden testify as to the results of his search of defendant, and that the state would offer the pistol and cartridges in evidence. At trial defendant made no contention of surprise as to this, and he makes none now on appeal.

In Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, it was held that a state procedural requirement that there be a 'contemporaneous objection' to the introduction of illegally obtained evidence does serve a legitimate state interest. One purpose of the rule in this state, with the one exception not here applicable, that a contention of an unlawful search and seizure be made before trial by a motion to suppress evidence is to prevent delays during trial in determining collateral issues not bearing on guilt or punishment. An equally important purpose, when no motion is filed before trial, is to indicate to the prosecution that the reasonableness of the search is not an issue and that unnecessary witnesses to establish that fact need not be brought to the trial with all the resulting expense and inconvenience. The rule unquestionably serves a legitimate state interest.

When no motion to suppress was filed in advance of trial, the prosecuting attorney properly could assume that defenant had no objection to the admission in evidence of the pistol or to the testimony of Officer Rhoden as to where he found the pistol. This could account for the prosecution going to trial when Sergeant Jennings was in the hospital and could not be present in court. Whether defendant failed to file a motion to suppress before trial because he knew that if the issue was raised the state could and would show a lawful arrest and a search made pursuant to that arrest, or because he deliberately bypassed the procedural requirement of filing a motion to suppress in advance of trial for strategic reasons or to invite error, he is not now entitled to contend that the pistol offered in evidence, or the knowledge of Officer Rhoden pertaining to the concealment of the pistol, was obtained as the result of an unlawful search.

Defendant next challenges Instruction 3, the verdict directing instruction, because it did not require a finding that defendant intended to and did conceal the weapon, or that he concealed it 'purposely or consciously.' Instruction 3 required a finding that defendant 'unlawfully and feloniously carried concealed upon or about his person a certain dangerous or deadly weapon, to-wit, a pistol.' Defendant cites only State v. Gibson, 322 Mo. 369, 15 S.W.2d 760. The evidence in this case was that Officer Rhoden found the loaded pistol in the waistband of defendant's Bermuda shorts underneath and concealed by his shirttail. The officer testified that he did not see the pistol until after he felt it in the process of searching the defendant. Defendant did not testify and offered no evidence.

In State v. Charles, Mo., 268 S.W.2d 830, 833, the same objection was made to an instruction in that case, and what this court there said rules the issue in this case. It was there said:

'On that point appellant cites cases holding there must be a conscious purpose to conceal the weapon. In State v. Gibson, 322 Mo. 369, 374, 15 S.W.2d 760, 761, the defendant was carrying a revolver in view beside him on the seat of his automobile. It was a question of fact as to whether he intended to conceal it, and the decision held an instruction omitting that element was erroneous. In the instant case instruction No. 1 expressly required a finding that the appellant did unlawfully and feloniously carry the pistol concealed on or about his person. There was no evidence that it was in view. We think there was no error in the instruction.'

In addition, defendant requested and the trial court gave Instruction 3A, which stated that even if the jury found that a dangerous and...