State v. Jones

• Decision Date: 08 November 1948
• Docket Number: 41032
• Citation: 214 S.W.2d 705,358 Mo. 398
• Parties: State of Missouri, Respondent, v. Carl Jones, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 705

358 Mo. 398

State of Missouri, Respondent, v. Carl Jones, Appellant

No. 41032

Supreme Court of Missouri

November 8, 1948

Appeal from Crawford Circuit Court; Hon. Claude E. Curtis Judge.

Reversed and remanded.

Earl E Roberts and Geo. F. Addison for appellant.

(1) The search of appellant's automobile and the seizure of contents thereof by a member of the State Highway Patrol were specifically prohibited by the State Highway Patrol Act and illegal and violated appellant's constitutional protection against unreasonable search and seizure under Article 1, Section 15, Constitution of Missouri. Sec. 8362 R.S. 1939; State v. Smith, 209 S.W.2d 138; State v. Owens, 259 S.W. 100. (2) Articles of evidentiary value only, obtained by means of illegal search are not admissible in evidence against the person affected whose premises were searched. State v. Owens, 259 S.W. 100.

J. E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

The court properly overruled defendant's second motion to suppress evidence relating to the finding of the jimmy tool and the introduction in evidence of same. State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87; State v. King, 331 Mo. 268, 53 S.W.2d 252; State v. Tull, 333 Mo. 152, 62 S.W.2d 389; State v. Davis, 329 Mo. 743, 46 S.W.2d 565; State v. Pinto, 312 Mo. 99, 279 S.W. 144; State v. One Buick Automobile, 253 P. 366; State v. Kaub, 15 Mo.App. 433; State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002.

OPINION

Conkling, J.

Appellant-defendant was convicted of burglary in the second degree. After sentence to two years in the penitentiary he appealed. Defendant here makes the single contention that the trial court erred in overruling his motion to suppress certain evidence. It is therefore unnecessary to state record facts not pertinent to the one issue now before us.

On January 20, 1947, defendant was treated in the office of Dr. Wm. Robey in Steelville, Missouri. During the course of that treatment, and in defendant's presence, the doctor opened a locked cabinet and drawer in which he kept narcotics. On the morning of January 21 the doctor discovered his office had been burglarized the previous night, the narcotic cabinet and drawer had been forced open and certain narcotics locked therein the day before were missing. A locked window into his office had obviously been pried open with a window tool or jimmy bar. A section of the window bearing the imprint of a jimmy was removed for examination. It was later photographed, the photograph enlarged and various tests made.

On January 21 defendant was arrested in Salem upon a Crawford County warrant charging the burglary. After his arrest, and while in the Prosecuting Attorney's office in Salem, defendant gave to Highway Patrolman Maloney the keys to his automobile. The car was then standing on the street in Salem. Defendant requested the Patrolman to take the car to the farm of defendant's wife. At the request of Federal Narcotic officers, Maloney held possession of the car for three days. The first night Maloney casually looked into the car for valuables which might be stolen therefrom, then locked the car, left it all night on the street in Salem and kept the keys in his possession. No search warrant was ever issued to search defendant's car, but the next day Maloney and a deputy sheriff drove the car to a garage, searched it, and seized certain narcotics found therein. As to those narcotics defendant, prior to trial, filed a motion to suppress. That motion was sustained by the trial court.

On January 23, 1947 and after defendant had given bond in Crawford County for his appearance at the trial, he returned to Salem and his counsel requested of Maloney the return of defendant's automobile. Unaccompanied by defendant, Maloney thereupon went to the garage to secure defendant's car for delivery to defendant. For some reason the car keys this time failed to unlock the door of the car. One key, however, unlocked the trunk of the car at the rear thereof. In attempting to go through the trunk and remove a car seat in order to open a car door from the inside, Maloney found a jimmy bar wedged between the spare tire and the inside wall of the trunk. Maloney kept the jimmy bar. From photographic enlargements of imprints made with that jimmy bar by an expert technician of the State Highway Patrol that jimmy bar was found to have been the one used to force open the window leading into Doctor Robey's office. Upon the trial of the case expert testimony tended to establish such fact. The state's testimony was sufficient to make a circumstantial evidence case for the jury.

Upon the trial, and during the Prosecuting Attorney's opening statement to the jury, defendant was first advised that Maloney had seized a jimmy bar found in defendant's car and that the state contended and expected to prove that the jimmy bar so seized was the one used to force open the window into Doctor Robey's office.

Defendant's counsel thereupon filed a motion to suppress evidence as to the jimmy bar upon the ground that the seizure of the jimmy bar violated his constitutional rights and the statute. Evidence was then heard upon the motion and Maloney testified to the facts above noted and further testified that when he found and seized the jimmy bar he was not searching the car but had theretofore found and seized everything he had been "told to search for". The trial court overruled this last motion to suppress. The propriety of that ruling is the only question presented to us on this appeal. Defendant offered no evidence at all.

On January 23, 1947, however, and after defendant had been released upon bond in Crawford County, and after demand had been made by his counsel in Salem, for return of his automobile (which Maloney had retained in his custody instead of taking it to defendant's wife) effort was...