State v. Holbert

• Citation: 416 S.W.2d 129
• Decision Date: 12 June 1967
• Docket Number: No. 51640,No. 2,51640,2
• Parties: STATE of Missouri, Respondent, v. Bertrand J. HOLBERT, Appellant
• Court: United States State Supreme Court of Missouri

Page 129

416 S.W.2d 129

STATE of Missouri, Respondent, v. Bertrand J. HOLBERT, Appellant.

No. 51640.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Gene B. Rosen, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Arthur Litz, St. Louis, for appellant.

EAGER, Judge.

Defendant was found guilty by a jury of the crime of carrying a concealed weapon, namely, a .32 caliber revolver; the jury was unable to agree on the punishment and the Court, acting under § 546.440, RSMo 1959, V.A.M.S. (to which revision all statutory citations will refer), sentenced defendant to a term of two years in the penitentiary. After an unavailing motion for new trial, he appealed. The appeal has wandered through a rather devious course; defendant was represented at the trial by privately employed counsel who withdrew after taking the appeal; his next employed counsel encountered difficulties with our disciplinary processes and surrendered his license. Considerable delay thus occurred before the filing of the transcript and thereafter we required that counsel be appointed to prosecute the appeal, in compliance with the ruling in Bosler v. Swenson (C.A. 8), 363 F.2d 154. Counsel was appointed and he has represented the defendant in a very efficient manner.

On July 24, 1964, at about 8:30 a.m., Officer Paul Heinzel, cruising near Hodiamont and Theodosia in the City of St. Louis, noticed a congestion of traffic and went to that location. He found defendant sitting alone in his Chevrolet car, which was stalled in the middle of the intersection, blocking traffic; he got out and walked over to defendant and asked him what the trouble was. He then saw a 'gun butt' sticking out of defendant's left shirt pocket; defendant did not have on a coat. The officer at that time placed defendant under arrest for 'carrying a gun,' reached in and took the pistol, had defendant get out of the car and handcuffed him; he found that the revolver, a .22 caliber of German make, was loaded and proceeded to search the defendant. He thus found a .32 caliber Iver-Johnson revolver fully concealed in defendant's left rear trousers pocket; the officer then searched the car. He found another revolver, a .22 caliber Rohn, under the cushion of the front seat on the driver's side; he also found a brief case containing about $3,700, a pair of binoculars and some radio equipment. Defendant was asked why he carried the guns and his answer was that it was done for his protection because he carried 'a large amount of money around.' The officer recognized defendant as the operator of the West End Pharmacy nearby, and defendant stated that the money represented receipts from the Pharmacy. For whatever it may be worth, the evidence showed that there was a bank two or three blocks from the scene. All three pistols were identified at the trial by the arresting officer; all were loaded when found. They were referred to in detail at the trial over objections, beginning with the State's opening statement. They were displayed in marked bags on the counsel table during the trial, they were described and referred to in detail by the two police witnesses, they were all passed to the jury, and they were emphasized repeatedly in the State's final arguments.

Sgt. Donald Brocksmith testified that he had examined, tested and fired all three of the pistols and that each was 'operational,' i.e., it would fire. Counsel for defendant objected to the admission of the revolvers identified as Exhibits 1 (found in the shirt pocket) and 3 (found under the cushion), but when Exhibit 2 (the Iver-Johnson found in defendant's hip pocket which was the basis of the present charge) was offered, defendant's counsel said to the Court: 'I have no objection to the introduction into evidence of State's Exhibit 2'; he then made detailed and very specific objections to the other two guns, principally for the reasons that they were irrelevant, that they tended to prove other offenses, that they were not admissible to prove intent on the present charge, and that they were inflammatory and were offered to create prejudice. The Court overruled the objections.

At the close of the State's evidence defendant's motion for acquittal was overruled and he offered no evidence. Prior to trial, defendant had filed and presented a motion to suppress evidence of the articles taken from his person and his car at the time of his arrest; this was done on the theory that the officer had no warrant for his arrest, that defendant was committing no act which would justify his arrest, that there was no probable cause for his arrest, and that the search was not incident to a lawful arrest. The testimony of Officer Heinzel was heard on that motion, substantially as already recited, and the motion was overruled. Apparently the motion was directed generally at all the articles taken, in reliance upon the Fourth and Fifth Amendments to the Federal Constitution and Art. 1, § 15 of the Missouri Constitution.

Of the four points raised by defendant we shall only need to consider two. The one lying at the very threshold of the case is the contention that the arrest was unlawful, that the search was unreasonable and violative of constitutional rights, and that the Court erred in overruling the motion to suppress all evidence relating to the .32 caliber revolver upon which this charge is based. Counsel cites State v. Cuezze, Mo., 249 S.W.2d 373, State v. Scanlan, 308 Mo. 683, 273 S.W. 1062, and State v. Bordeaux, Mo., 337 S.W.2d 47. The point actually made is that the revolver in defendant's shirt pocket was not concealed, that its possession constituted no crime, that there was no reasonable ground to suspect defendant of committing any crime, and that no crime in the neighborhood had been reported to the arresting officer. The State has cited State v. Cantrell, Mo., 310 S.W.2d 866, State v. Reagan, Mo., 328 S.W.2d 26, and State v. Durham, Mo., 367 S.W.2d 619, as indicating circumstances which justify an arrest, and, therefore, as permitting a search reasonably incident to the arrest. We do not find it necessary to rule upon the legality of this arrest. The point is only made as to Exhibit 2, the .32 caliber revolver, and on the overruling of the motion to suppress evidence as to it. When that exhibit was offered, defendant's counsel expressly stated to the Court, as quoted above, that he had no objection to its introduction into evidence. This, we rule, was an affirmative waiver of the contentions made in the motion to suppress and of the ruling thereon, insofar as that exhibit was concerned. In State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, loc. cit. 886, the Court said: 'After counsel asked the court to pass on the motion to suppress, no other or further objection was made to the admission of the exhibit for the reason it had been obtained in violation of the defendant's constitutional guaranty against unreasonable search and seizure. * * * But aside from all this there was no error in the admission of the evidence and the overruling of her motion to suppress. Whether or not the evidence was unlawfully obtained was a question to be determined on the motion to suppress. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383. After the motion is overruled the defendant keeps the question alive by timely objection (State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301) but the court does not then interrupt the trial to pass on the legality of the search and seizure but only determines whether the evidence is competent and relevant. State v. Owens, supra.' The waiver there apparently consisted of the cross-examination of a witness concerning the disputed exhibit, before again asking the Court to strike the exhibit. We need not rule here whether a mere failure to object to the exhibit, after the overruling of a motion to suppress, is a waiver in itself; Hepperman, supra, indicates that it is. And see also Chandler v. State, 89 Ind.App. 304, 166 N.E. 289; Robertson v. State, 94 Fla. 770, 114 So. 534; Dukes v. Commonwealth, 196 Ky. 60, 244 S.W. 74; State v. Hartness, 147 Wash. 315, 265 P. 742; Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361. In the case of State v. Durham, Mo., 367 S.W.2d 619, loc cit. 623, the Court held that the search complained of was fully justified by an Illinois statute and that the motion to suppress was properly overruled. We do not consider the Court's statement there, namely: 'Assuming that no objection at the time the items were offered in evidence was necessary to...