State v. Hunt

• Decision Date: 13 June 1955
• Docket Number: No. 44380,No. 1,44380,1
• Citation: 280 S.W.2d 37
• Parties: STATE of Missouri, Respondent, v. Carl Lee HUNT, Appellant
• Court: Missouri Supreme Court

Page 37

280 S.W.2d 37

STATE of Missouri, Respondent, v. Carl Lee HUNT, Appellant.

No. 44380.

Supreme Court of Missouri, Division No. 1.

June 13, 1955.

James J. Pankin, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was convicted of buying and receiving stolen goods of a value of over $30.00, knowing the goods to have been stolen, in violation of Sec. 560.270 RSMo and V.A.M.S. Defendant was sentenced to two years in the pententiary and has appealed.

There is no question as to the sufficiency of the evidence to make a jury case. One Sam Massa testified that he and two other men broke into a hardware store in Farmersville, Illinois, took some shotguns, electric fans and fishing rods and put them in his car. Later that night he was arrested while breaking into another store in Litchfield, Illinois, but his two companions escaped in his car. He said he had sold defendant articles obtained by him in previous burglaries on several occasions and that defendant knew they were stolen. Mrs. Massa testified she told defendant she had some things she wanted him to buy and that Sam had been picked up in Illinois. She said defendant told her to drive the car to his tavern, which she did, and defendant took some of the articles, gave her fifty dollars and said he would straighten the rest out with Sam. She said she told defendant where the goods came from and how Sam's companions got away when he was picked up. Defendant did not testify or offer any evidence.

The serious question in this case is whether there was prejudicial error in the admission of certain testimony concerning articles, taken by unlawful search and seizure, from the building in which defendant lived and operated a tavern. We have decided that this evidence was inadmissible and that the judgment must be reversed on this ground.

The search was made by St. Louis police officers under a search warrant. Several articles were seized and taken to the police station; and defendant was arrested. Defendant filed a motion to quash search warrant, suppress evidence and for his discharge. This motion stated several grounds upon which it was claimed the search warrant was insufficient, illegal and void and asked the following relief: 'Defendant moves the Court to quash the aforementioned Search Warrant and to suppress any and all evidence so obtained at the time of the execution of the aforementioned Search Warrant, and to discharge the defendant under the indictment.' The record recites action on this as follows: 'Said motion to quash search warrant, suppress evidence and for discharge of defendant was sustained insofar as the motion to quash search warrant and suppress evidence, but not for discharge of defendant.' This procedure was in accordance with our Rule 33.03, 42 V.A.M.S. which was in effect at that time.

The common law rule was that admissibility of evidence was not affected by the means employed in obtaining it. However, the United States Supreme Court, in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, followed by Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 and later cases (see 20 Am.Jur. 356, Sec. 395 and 22 C.J.S., Criminal Law, Sec. 657, pp. 1025-1031) established the rule of exclusion of evidence obtained by unlawful search and seizure. This rule has been criticized and many states have not adopted it. (See Wigmore on Evidence, 3rd Ed., Secs. 2183-2184 and articles cited p. 11.) However, we adopted the Federal rule in State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383. (For recent cases see State v. Clark, Mo.Sup., 259 S.W.2d 813; State v. Cuezze, Mo.Sup., 249 S.W.2d 373; State v. Jones, 358 Mo. 398, 214 S.W.2d 705. This is now the established rule in this State and we have further recognized it in providing the procedure for raising the question in Rule 33.03.

In this case, when the search of defendant's premises was made, the St. Louis police officers were accompanied by several other officers including Sheriff John Morley of Montgomery County, Illinois. In his testimony herein, he was permitted to describe certain articles taken from defendant's premises at that time. Also an employee of the Farmersville store, George L. Trutter, was permitted to testify that he went to the St. Louis police station, where these articles had been taken, and examined them there, and to identify them as articles that had been in the store at Farmersville. Timely objection was made when the State's attorney, in his opening statement, said he would produce this testimony and also during the direct examination of these witnesses.

The trial court's view was 'that the articles themselves, as such, cannot be used, but testimony pertaining to the articles is permissible.' However, the matter has thus been stated in 22 C.J.S., Criminal Law, Sec. 657, p. 1026: 'The rule excluding evidence obtained as a result of an illegal search includes oral testimony of facts gathered during the unlawful search.' We must hold that under the circumstances of this case the testimony these two witnesses gave pertaining to seeing the articles at the police station was not permissible. The same thing is true of that part of the testimony of Mr. Massa to the effect that she went to the police station and identified one of the articles taken by the police as an article she sold to defendant. The search warrant had been declared illegal by the Court and the evidence found under it ordered suppressed and there is no issue on this appeal as to the propriety of this action. Therefore, we are bound by this determination and must consider that these articles were illegally seized and held. Under these circumstances, we must hold that it was just as improper to describe them in evidence as it would have been to offer them in evidence, when the description is made by persons examining them in the custody of the police at the instigation of and at the request of the State. The State relies mainly on State v. Wilkerson, 349 Mo. 205, 159 S.W.2d 794; citing also State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878 and State v. Steely, 327 Mo. 16, 33 S.W.2d 938. However, in the Wilkerson case, 159 S.W.2d loc. cit. 798, we quoted with approval the statement of Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, that "the essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before ...