State v. Harris

• Decision Date: 16 June 1959
• Docket Number: No. 29918,29918
• Citation: 325 S.W.2d 352
• Parties: STATE of Missouri (Plaintiff), Respondent, v. Robert HARRIS (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 352

325 S.W.2d 352

STATE of Missouri (Plaintiff), Respondent, v. Robert HARRIS (Defendant), Appellant.

No. 29918.

St. Louis Court of Appeals, Missouri.

June 16, 1959.

Raymond A. Bruntrager, St. Louis, for appellant.

Thomas F. Eagleton, Circuit Atty., City of St. Louis, for respondent.

ANDERSON, Judge.

Appellant, Robert Harris (hereinafter called defendant) was found guilty of possessing lottery tickets, a misdemeanor. From the ensuing judgment, wherein his punishment was assessed at one year in the City Workhouse and a fine of $1,000, he has prosecured this appeal. The appeal was taken to this court. Thereafter, we transferred the cause to the Supreme Court on the ground that a constitutional question was involved, defendant claiming that his constitutional rights under Article 1, Section 15, of the Constitution of Missouri, 1945, V.A.M.S. had been violated. The Supreme Court retransferred the case to this court holding that it had no jurisdiction of the appeal because the case did not involve the construction of Article 1, Section 15, of the Constitution in any respect not theretofore adjudicated by that court. State v. Harris, 321 S.W.2d 468.

Defendant here contends that the trial court erred: (1) in refusing to sustain his motion to suppress and in admitting in evidence certain 'policy' paraphernalia alleged to have been obtained through an unreasonable and unlawful search and seizure, in violation of Sections 15 and 19 of Article 1 of the Constitution, and in permitting testimony by the police officers concerning the challenged evidence; (2) in refusing to give defendant's Instruction 'A' which would have submitted to the jury the issue of the lawfulness of defendant's arrest and have directed the jury that in the event they found there were no reasonable grounds for defendant's arrest, they should disregard all evidence obtained from the person of defendant by any search incident to the arrest, as well as all testimony relating to such evidence; (3) in unduly restricting the cross-examination of Police Officer McInerney; (4) in making an improper remark in overruling an objection by defense counsel, and in refusing to strike said remark from the record and to grant a mistrial by reason thereof; (5) in permitting the arresting officer to testify that he had known defendant before the date of the arrest; (6) in permitting claimed prejudicial argument by the State's counsel which was to the effect that an inference of guilt could be presumed from the flight of defendant, since there was no flight in a legal sense shown; (7) in permitting the State's counsel to argue that the only question before them was the amount of punishment and not the guilt or innocence of the defendant; and (8) in failing to declare a mistrial when the State's counsel argued that if a mere fine were assessed the defendant would only laugh at them. For the reasons hereinafter stated, we affirm the judgment appealed from.

It appears from the record before us that 'policy' is a lottery or game of chance where bettors select numbers to bet on and place the bet with a policy writer. In the operation of this game certain records are made which are referred to in the evidence as policy writer's 'top sheets,' 'take sheets,' policy 'result drawings,' policy 'hit slips,' and policy 'shortage slips.' We deem further reference to the mechanics of the game as being unnecessary to a determination of this appeal.

At approximately 8:00 p. m. on June 22, 1956, Officers Edward Davis and Thomas McInerney of the St. Louis Police Department parked their automobile on the east side of Marcus Avenue, a north and south street, about seven feet south of Lewis Place, which street runs in an east and west direction. The officers then got out of the automobile and took up a position on the south side of Lewis Place, west of Marcus Avenue. Shortly thereafter the officers observed defendant leave his home at 4745 Lewis Place and walk east on the north side of Lewis Place. At that time he was carrying a brown paper bag. Defendant walked to the east side of Marcus, turned south and crossed Lewis Place. Before defendant reached Marcus Avenue the police officers returned to their automobile. When defendant started across Marcus Avenue, Officer Davis left the police vehicle and again went to the west side of Marcus. McInerney remained in the police car. When defendant reached a point about eight or ten feet north of the police car, Officer McInerney got out of the car and said, 'Police Officer.' McInerney had his police bedge in his hand at the time and intended to arrest defendant for investigation. Up to that time defendant had walked slowly and in a normal manner, and was doing nothing of a suspicious nature. The officers knew of no offense that defendant was committing at the time. They could not see the contents of the brown bag which he was carrying and knew nothing of its contents until after defendant was arrested. The officers had no warrant for defendant's arrest, and no search warrant authorizing them to search the defendant. When Officer McInerney shouted 'Police Officer' defendant started to run, still carrying the brown bag. McInerney then shouted 'stop' three or four times. Thereafter, defendant tossed the bag onto the roof of a one-story garage building located at 1012 Marcus Avenue, then stopped and submitted to arrest. The defendant had run south approximately 60 feet from the corner of the intersection. After Officer McInerney placed defendant under arrest he put him into the police car. After defendant was arrested, Officer Davis came from across the street and was instructed by McInerney to recover the bag from the roof of the garage. This Davis did, and it was then that he first learned the contents of the bag. It contained policy writers' top sheets, take sheets, policy result drawings, policy hit slips, and policy shortage slips. There was a total of 362 policy sheets. The bets recorded totaled $1,179.95. The contents of the bag were introduced in evidence over defendant's objection.

At the hearing on the motion to quash defendant called Officer McInerney to the stand. On direct examination, which was conducted by defense counsel, said officer gave the following testimony:

'A. * * * he ran south on Marcus and in front of 1012 Marcus there is a one-story brick garage and he turned around and tossed the paper bag he was carrying onto the roof of the garage. At that time Patrolman Davis climbed onto the roof and recovered the paper bag. * * * At the time, Officer Davis got on the roof, he could see the sheets protruding from the pager bag. * * * After it (bag) was tossed onto the garage roof he saw the sheets protruding from the bag--undoubtedly they fell out when he threw it on the roof. * * * I placed the defendant under arrest; previous to that he had run away when we told him to stop, and then Patrolman Davis recovered the brown paper bag with the sheets that were protruding from the bag on the roof of the garage.'

In the instant case we think the action of the trial court in overruling defendant's motion to suppress was correct. The evidence obtained was not the result of a search of defendant's person at the time of his arrest, nor was there any seizure of the contraband articles from his possession. Prior to his arrest defendant abandoned possession of the bag containing the articles in question by tossing the bag onto the roof of the garage where it lay with its contents exposed to view. As we view it, no case of search and seizure violative of defendant's right to be secure in his person under Article 1, Section 15, of the Constitution is presented. Johnson v. Commonwealth, 201 Ky. 163, 256 S.W. 18; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Defendant cannot complain of the search of the roof of the garage by Officer Davis. The right to immunity from unreasonable searches and seizures under the Constitutional provisions before mentioned extends to one's dwelling house and the area surrounding same. State v. Zugras, 306 Mo. 492, 267 S.W. 804. It does not include property of another which he does not own, lease or rightfully possess, control or occupy. State ex rel. McDonald v. Frankenhoff, 344 Mo. 188, 125 S.W.2d 816; State v. Askew, 331 No. 684, 56 S.W.2d 52; State v. Green, Mo., 292 S.W.2d 283; State v. Rodgers, 364 Mo. 247, 260 S.W.2d 736; State v. Egan, Mo.App., 272 S.W.2d 719; Johnson v. Commonwealth, 201 Ky. 163, 256 S.W. 18; Davis v. Commonwealth, 201 Ky. 300, 256 S.W. 429. Nor does an unlawful search and seizure take place where papers and effects siezed are open to the eye and hand. State v. Watson, 329 Mo. 158, 44 S.W.2d 132; State v. Harre, Mo., 280 S.W.2d 41; State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688; 47 Am.Jur., Searches and Seizures, Sec. 20, p. 516; State v. Quinn, 111 S.C. 174, 97 S.E. 62, 3 A.L.R. 1500; State v. Miller, 121 Wash. 153, 209 P. 9. Here, the testimony shows that when Officer Davis climbed onto the roof of the garage the contents of the paper bag were exposed to his view. Under such circumstances, defendant's constitutional rights were not invaded when Officer Davis took possession of the contents of the bag. State v. Hawkins, supra. Nor did the court err in overruling defendant's objection to the introduction into evidence of the contents of the bag, or in permitting the officers to testify concerning same.

The court did not err in refusing defendant's requested Instruction 'A'. Whether or not the evidence had probative force was a question of law which the court decided adversely to defendant's contention when it ruled the evidence admissible. It was ruled admissible on the theory that the policy paraphernalia was not obtained from the person of the defendant or from his possession by reason of an unlawful search. Instruction 'A' would have permitted the jury to overrule the trial court on this question of law on a theory not supported by the proof. This is...