State v. Lowe

• Citation: 442 S.W.2d 525
• Decision Date: 14 July 1969
• Docket Number: No. 2,No. 54212,54212,2
• Parties: STATE of Missouri, Respondent, v. John Charles LOWE, Appellant
• Court: United States State Supreme Court of Missouri

Page 525

442 S.W.2d 525

STATE of Missouri, Respondent, v. John Charles LOWE, Appellant.

No. 54212.

Supreme Court of Missouri, Division No. 2.

July 14, 1969.

John C. Danforth, Atty. Gen., Jefferson City, Frederick H. Mayer, Sp. Asst. Atty. Gen., St. Louis, for respondent; Cook, Murphy, Lance & Mayer, St. Louis, of counsel.

James C. Jones, III, St. Louis, for appellant.

STOCKARD, Commissioner.

Appellant was found guilty by a jury of burglary in the second degree and with stealing during the commission of the burglary, and pursuant to § 556.280 RSMo 1959, V.A.M.S., the trial court assessed his punishment at confinement by the Department of Corrections at seven years for burglary and four years for the stealing, the sentences to run concurrently. After his motion for new trial was overruled, allocution was held, and sentence and judgment were entered accordingly. This appeal followed.

Appellant rented a room in Phil's Hotel, and on May 17, 1968, he and a companion spent most of the day in the tavern located on the first floor. About 6:00 o'clock of the morning of May 18, it was discovered that a glass panel in the front door of the tavern had been broken out, and that a cigarette machine had been opened and packages of cigarettes removed from it. In addition, packages of chewing gum, some sausages called 'Slim Jims,' and some cash had been stolen. The police went to the hotel room of appellant. His companion was alone in the room, and the police found packages of cigarettes and chewing gum. The 'tax numbers' on the packages of cigarettes were identical to the 'tax numbers' on the cigarette packages remaining in the machine in the tavern. On the following morning appellant was arrested, and after being given the 'Miranda warnings' he told the police that about 4:00 o'clock of the morning of May 18, he broke a glass panel next to the door of the tavern, entered the building, opened the cigarette machine and took some packages of cigarettes. He further stated that he took some chewing gum and some sausages, and that after returning to his room above the tavern he went to the St. Regis Hotel and rented a room.

Detective Vollmer testified on direct examination that appellant took him to his room in the St. Regis Hotel where he found packages of cigarettes and chewing gum, and that he examined the cigarettes and found 'That the Federal Tax Stamp was the same number that was on the cigarette machine in the tavern.' No objection was made to this testimony. Subsequently on cross-examination he was asked when he checked the number on the cigarette machine, and he replied that he 'checked the numbers on the cigarettes against the original report that was made in the burglary which * * * incorporated the number of the cigarette machine.' Counsel for appellant then moved that 'this testimony of this officer with regard to the identity of the cigarettes as coming out of that cigarette machine be stricken and that the jury be asked to disregard it on the grounds that it's based on hearsay.' A discussion followed in which the state's attorney stated that the knowledge of the witness was 'based upon the work record of the Police Department,' which was 'the ordinary business record every officer can refer to by just getting out a report.' He further stated that he 'could put the officer back on (the witness stand) who made the original investigation.' The motion was overruled.

The officer who the state's attorney impliedly offered to put back on the witness stand was Officer Lachenicht who had investigated the burglary. He had previously testified that the numbers on the packages of cigarettes found in appellant's room above the tavern were the same 'as the ones that were in the machine.' He did not testify that he had checked the number on the machine. Any report he made was not in evidence.

The testimony of Detective Vollmer that the tax number on the cigarettes found in the room in the St. Regis Hotel was the same as the numer on the cigarette machine was a conclusion, and it was also hearsay because the witness had no personal knowledge of the number on the machine. However, this testimony came in without objection. The issue is whether, as appellant contends, prejudicial error resulted when the court refused to strike the testimony of Detective Vollmer when it was subsequently developed that the witness did not have personal knowledge of the number on the machine.

It has been held that the admission of hearsay evidence is not prejudicial when the matter as to which it was admitted 'was immaterial or not essential to conviction, or was admitted, or not disputed, by accused, or was established by other evidence which was competent or was admitted without objection, contradiction, or controversion.' 24B C.J.S. Criminal Law § 1915(16). In State v. Wilson, Mo., 286 S.W.2d 756, a highway patrolman related an oral confession by defendant of the offense charged. The patrolman was then permitted to testify as to a statement made by one Haney, an accomplice, which implicated defendant. It was held: 'If, however, Haney's statement, under the circumstances, was inadmissible as hearsay, it is clear that no prejudice resulted to defendant by reason of its admission. This, because defendant's part in the larceny of the motor vehicle was admitted by defendant in his voluntary statement to the highway patrolman, and Haney's statement was the same as defendant's except for one unimportant and nondecisive detail. Consequently, Haney's statement tended only to corroborate defendant's confession and its admission could not have resulted in prejudice to defendant.' See also State v. Baldwin, Mo., 399 S.W.2d 22; State v. Nidauri, Mo., 293 S.W.2d 955; State v. Bright, Mo., 269 S.W.2d 615; State v. Reich, 293 Mo. 415, 239 S.W. 835, 837; and State v. Pollnow, Mo., 14 S.W.2d 574. In this case there was in evidence the testimony of two persons (the police officer and the manager of the tavern in whose presence the oral confession was made) as to the statement of appellant in which he admitted that he had taken cigarettes from the machine in the tavern. There was also the testimony of Detective Vollmer that appellant had told him that the cigarettes he had taken from the machine were in the appellant's room at the St. Regis Hotel. The hearsay statement of Detective Vollmer that the numbers on the cigarette packages were the same as the number on the machine tended only to corroborate defendant's confession, and does not require the reversal of the judgment.

Appellant also contends that the 'court erred in denying (his) motion for leave to file a plea of not guilty by reason of mental disease or defect and for mental examination, and in denying (his) motion for a new trial on that ground.'

On June 27, 1968, appellant was arraigned and entered a plea of not guilty. On July 23, the day the case was set for trial, appellant's counsel requested a continuance 'on the grounds that there are witnesses * * * (who) would testify that the defendant was in such a state of intoxication that he didn't know what he was doing and that the statement he made was involuntary.' Counsel then advised the court that only that morning had appellant first mentioned this to him, and that although he had asked appellant to give him the names of the witnesses he refused to do so. The motion for continuance was denied. The jury was then selected, but before it was sworn appellant's counsel made the following statement: 'Your Honor, the defendant has asked me to ask leave of Court to file a plea of not guilty by reason of mental disease or defect excluding responsibility and amounting to unfitness to stand trial. I realize that this motion is made somewhat out of time but nevertheless that's the reason I ask leave of court to file that. The motion is that the plea be...