State v. Jonas

• Decision Date: 13 July 1953
• Docket Number: No. 1,No. 43475,43475,1
• Citation: 260 S.W.2d 3
• Parties: STATE v. JONAS
• Court: Missouri Supreme Court

Page 3

260 S.W.2d 3

STATE v. JONAS.

No. 43475.

Supreme Court of Missouri, Division No. 1.

July 13, 1953.

Frank Bild, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Walter G. Stillwell, Asst. Atty. Gen., and Grover C. Huston, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Defendant, tried by jury, was found guilty of second degree burglary of and larceny from a gasoline filling station in the City of St. Louis. His punishment was assessed at imprisonment in the state penitentiary for a term of ten years for the burglary and five years for the larceny. Following the overruling of his motion for new trial, allocution and judgment, he has appealed.

The information as originally filed named another as a codefendant. Subsequently, the codefendant was granted a severance and an amended information was filed against the herein defendant alone. In addition to the charge of burglary and larceny, the amended information alleged his prior conviction of seven felonies and lawful discharge upon compliance with the sentences therein imposed.

Defendant, although represented by court-appointed counsel at the trial, has filed no brief in this court. We, therefore, review the record proper and all valid assignments of error in the motion for new trial. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 49.

Seven assignments are set forth in the motion. Of these, Nos. 2, 3, 6 and 7 wholly fail to comply with the mandatory provisions of Section 547.030 RSMo 1949, V.A.M.S., requiring that the motion for new trial in a criminal case 'must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.' See State v. Boyd, Mo.Sup., 256 S.W.2d 765, 766, and cases cited therein. Thus: Nos. 2 and 3 are, respectively: that the court erred 'in overruling the objections of defendant's counsel to the questions asked by the circuit attorney of the State's witnesses', and 'in sustaining the objections of the circuit attorney to questions asked of witnesses by defense counsel.' See State v. Tillett, Mo.Sup., 233 S.W.2d 690, 692. Nos. 6 and 7 are, respectively: 'The verdict is against the law, as declared * * * by the court', and misdirection of the jury 'in material matters of law as set out in instructions numbered 1, 2, 3, 4, 5, 6 and 7.' See State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 777.

Assignment No. 1 sufficiently alleges error of the trial court in overruling defendant's motion to suppress certain evidence, to wit: a radio, automobile battery and a five-quart can of oil, allegedly stolen from the filling station, on the ground they were obtained through an unlawful search and seizure of defendant's automobile. Assignments 4 and 5 allege insufficiency of the evidence to support the verdict.

The only evidence introduced by defendant in support of his motion to suppress said evidence consisted of the testimony of two of the three police officers who were present at the time of his arrest. Inasmuch as these officers testified to substantially the same facts in behalf of the State at the trial on the merits, such evidence need be stated only once in determining the merits of both the motion to suppress and the charge of insufficiency of the evidence to support the verdict.

At the trial on the merits, defendant elected to stand on his demurrer offered at the close of the State's case. The testimony in behalf of the State warrants a finding that:

On Saturday, December 1, 1951, as he had for more than twenty-two years prior thereto, Louis Ebenhoh operated a gasoline filling station located near the center of a lot at the southwest corner of Kingshighway and Murdoch Streets. He also sold at retail therefrom automobile tires and batteries and Shell petroleum products. At the close of business at 9:00 p. m., on that day, Ebenhoh's employee, Charles Neun, turned off the station lights, securely locked all of the doors and windows, including a window in the outer wall of the men's washroom, and left the premises. At that time there was in the building, in addition to the merchandise for sale, a table model radio belonging to another employee, James Aubertin, who had left the station about 7:00 p. m At approximately three o'clock on Sunday morning, December 2nd, St. Louis metropolitan police officers, Joseph Hormberg, Elmer Kraeger and Albert Bean, all on duty, were cruising in the area of the filling station in a police car driven by Kraeger. As they drove by the station, they saw defendant sitting behind the steering wheel of an automobile, with its lights turned off, parked in the station driveway in front of the gasoline pumps. Officer Hormberg thought he saw (with the aid of the corner street light and, possibly, a night light in the otherwise darkened station) the shadow of a man moving about inside the station. They immediately stopped their car and entered the lot. Hormberg went up to the car in which defendant sat, Kraeger went to the rear of the building, and Bean went to the side thereof. The motor of defendant's automobile was running. As Hormberg stood watching him, saying nothing, defendant got out of the automobile, raised its hood and began 'fooling with the motor'. In the meantime, Kraeger, at the...