State v. Hawkins, 42295

• Decision Date: 11 June 1951
• Docket Number: No. 42295,No. 1,42295,1
• Citation: 240 S.W.2d 688,362 Mo. 152
• Parties: STATE v. HAWKINS
• Court: Missouri Supreme Court

Page 688

240 S.W.2d 688

362 Mo. 152

STATE v. HAWKINS.

No. 42295.

Supreme Court of Missouri, Division No. 1.

June 11, 1951.

Errol Joyce, Brookfield, Nolan M. Chapman, Chillicothe, Walter A. Raymond, Kansas City, for appellant.

J.E. Taylor, Atty. Gen., A. Bertram Elam, Asst. Atty. Gen., for respondent.

CONKLING, Presiding Judge.

Appellant, Charles Vernon Hawkins (hereinafter called defendant), was convicted of grand larceny. From the ensuing judgment wherein his punishment was assessed at 2 1/2 years imprisonment in the state penitentiary he prosecuted this appeal. He was charged with having taken four men's suits and five sets of drapes, valued at $265 from the store of J. C. Penney Company, a corporation, located in North Kansas City, Missouri.

Defendant here contends that the trial court erred, (1) in overruling his motion to require the prosecuting attorney to furnish defendant the addresses of certain witnesses, the names of whom the prosecuting attorney had theretofore given to defendant's counsel, and which names the state later endorsed upon the information, (2) in refusing to suppress and in admitting in evidence the particular goods and merchandise charged to have been stolen, it being contended by defendant that that evidence was obtained by 'an unlawful and unreasonable search and seizure of defendant's automobile', and (3) in permitting claimed prejudicial statements and argument by the prosecuting attorney. Defendant does not here contend that the evidence (if properly admitted) does not establish the offense charged, nor did defendant offer any testimony upon the trial. For reasons hereinafter stated we affirm the judgment appealed from.

It appears from the record before us that about 8 P.M. on April 26, 1949, and while the store was open for business, the defendant and George Bevelle and Roland Kalinka were in the Penney store in question. It had not rained since morning but these three men had raincoats over their shoulders. These three men were looking through the merchandise in the men's suit and in the drapery department. They were acting suspiciously, had a furtive attitude and were glancing around. A customer saw defendant take some draperies off of a counter, place them under his raincoat and the three men walked out of the rear door of the store. Defendant was observed to leave the store by the back door three different times. Those facts were reported to the store management.

The store manager and assistant manager left the store looking for the Penney merchandise and a policeman, and seeking to recover the merchandise and effect the arrest of those who had taken the merchandise. They found the three men (defendant, Bevelle and Kalinka) on the street near a car which was later found to belong to defendant. As Mr. Johnson, the store manager, and a policeman (Mr. Hudgins) came up to defendant's parked car, and as soon as they 'looked into it (the car) and saw the merchandise', the three men (defendant, Bevelle and Kalinka) 'started to run'. Another officer who was also present, Morgan Duncan, pursued them and Kalinka was captured and arrested. The other two men were not then caught. Looking through the glass windows of defendant's automobile Officer Hudgins saw 'a bunch of suits laying on the seat of the car. I looked through the glass, saw them laying in there and some drapes.' Hudgins was then standing on the street 'looking through the back windows.' He did not then open the door of the car. The officer called Mr. Johnson and, through the glass of the car, showed Johnson the suits and drapes lying in defendant's car. Johnson recognized the suits and drapes, lying loose and unwrapped in defendant's car as unsold merchandise from the Penney store. The merchandise was later further identified also by the labels. The car was guarded and a deputy sheriff was called who drove the car to the Police Station. The car doors were not locked. The ignition keys were in the car. At the police station the stolen suits and drapes were locked up until turned over to the Prosecuting Attorney. When Kalinka was searched at the police station he had a duplicate ignition key to defendant's car. The car, a Chevrolet, remained at the police station from April 26 until the latter part of August, 1949, when defendant brought in his certificate of title to the car, claimed and identified it, signed a receipt for it and took the car away.

On March 20, 1950, the prosecuting attorney wrote a letter to defendant's counsel and therein set out the names of nine additional witnesses, and advised counsel that the state intended to ask leave of court to indorse the names of such witnesses on the information. On May 5, 1950 defendant filed a motion in the cause for an order to require the prosecuting attorney to furnish defendant the addresses of such nine witnesses. That motion was overruled. The names of the witnesses were indorsed on the information. Defendant made oral request for such addresses at the start of the trial. On May 9, 1950, defendant filed his motion to suppress evidence and directed specifically to the four men's suits and five sets of drapes charged in the information to have been taken. Ruling thereon was reserved. The case went to trial on May 10, 1950. Upon the trial the motion to suppress was orally renewed and was overruled by the court, and the suits and drapes were admitted in evidence over defendant's objection.

We first consider whether the court erred in overruling defendant's motion to require the state to furnish defendant the addresses of the witnesses above noted. In support of his contention of error defendant cites Sections 545.240 and 545.070, R.S.Mo.1949, State v. Barrington, 198 Mo. 23, 95 S.W. 235, 250; State v. Lindsey, Mo.Sup., 80 S.W.2d 123; Ex parte Welborn, 237 Mo. 297, 141 S.W. 31, 33, and State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 620.

There is nothing in either statute cited (nor in any statute we have found) which requires the state to furnish to defendant the address of any state witness. It is required by the statutes that 'the names of all the material witnesses must be endorsed' upon both informations and indictments, but there is neither constitutional nor statutory requirement that the addresses of such witnesses be furnished to defendant. It appears that nearly two months (or more) before trial defendant was advised of the state's intention to indorse the names of these witnesses upon the information. We have held that 'It is not the manual act of writing the name of a witness upon the indictment, but the fact of knowledge that he will be used, which is important', State v. Merrell, Mo.Sup., 263 S.W. 118 loc.cit. 120, so there can be no possible question here of the timeliness of the notice of the intention of the State to use the witnesses.

The above cases cited by defendant do not rule the question now before us. Those cases and others we have decided, See, 9 West's Missouri Digest, Criminal Law, k628, have ruled the allied and related questions of the necessity and the timeliness of notice to defendant of the intention of the state to use certain witnesses. Our research does not develop that this court has heretofore ruled this precise question of whether the state must furnish defendant the addresses of the witnesses it intends to call in a criminal case.

And our conclusion is that the State is not compelled to do so. Absent such a constitutional or statutory requirement defendant was not entitled to the addresses as a matter of absolute right. The State called but five of the nine witnesses. Of those five witnesses: two were law enforcement officers in North Kansas City, one was an employee in the Penney store in North Kansas City and the other two were customers in the store at the time of the theft. When the witnesses were called defendant made no objection to any of them testifying, claimed no surprise, and made no showing whatever of prejudice for the reason he had not been furnished the addresses. Defendant's motion for new trial saves no such question. No showing of diligence was made. It does not even appear that any attempt whatever was made to locate any of those witnesses. Nor does it appear that defendant did not locate the witnesses. But it is clear from the entire record that defendant was not prejudiced. The trial court heard this question at length and obviously reached the same conclusion. No abuse of the discretion of the trial court appears.

In 23 C.J.S., Criminal Law, Sec. 951, page 260, it is said: 'In the absence of statute, accused cannot require the state to inform him as to the residences of witnesses whose names appear on the indictment, ever though he may desire such knowledge to ascertain their standing and credibility.' See, also, Commonwealth v. Applegate, 1 PaDist.R. 127. We rule that the contention of error is without merit.

We next consider defendant's contention that the court erred in admitting in evidence the articles charged to have been stolen (the suits and drapes) for the reason that they were obtained by unlawful and unreasonable search and seizure of defendant's automobile. Officer Hudgins testified, in part:

'Q. * * * And what did you do then? A. Why, I sat there and was checking traffic and the stop light and Mr. Johnson drove by, I knew him and he was all excited, him and another man in the car.

'Q. Then as I understand it you started out checking cars? A. Checking cars.

'Q. That is by checking cars just what do you mean by that, looking in them? A. I do. Well, we have had things stolen and (have) looked into them just walking by and glancing into them. That's my job.

'Q. Well you came to the car after looking into other cars, you say, and this particular car you have described what did you observe as to whether it was locked or unlocked? A. I observed the merchandise that was in the back seat of the car. Some of it fell down between the front seat and the back seat.

'Q. Did you...