State v. McDaris, 55398
| Decision Date | 08 February 1971 |
| Docket Number | No. 55398,No. 1,55398,1 |
| Citation | 463 S.W.2d 809 |
| Parties | STATE of Missouri, Respondent, v. Everett J. McDARIS, Jr., Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.
Wear, Wear & Coffman, William A. Wear, Springfield, for appellant.
HIGGINS, Commissioner.
Everett J. McDaris, Jr., with prior convictions for burglary and stealing, was further charged in an amended information alleging that Everett J. McDaris, Jr., and Jerry Wayne McDaris 'did * * * wilfully, unlawfully and feloniously have in their possession and under their control a bomb, to-wit: an object containing dynamite connected with a fuse and dynamite cap whereby such dynamite may be ignited and exploded, said dynamite being capable of causing bodily harm to persons, with intent to use the same unlawfully against the person of another, to-wit: Joan Hester, * * *.' Upon severance, Jerry Wayne McDaris was convicted by a jury on November 4, 1969, and his conviction was affirmed on appeal. State v. McDaris, Mo., 463 S.W.2d 813, January 11, 1971. Everett J. McDaris, Jr., was convicted by a jury on December 12, 1969, of the offense charged, and the court assessed his punishment at six years' imprisonment. Sentence and judgment were rendered accordingly. §§ 556.280, 564.580, V.A.M.S.
The questions posed by this appeal do not concern sufficiency of the evidence, and a brief statement will demonstrate that the state made its case. On August 25, 1969, Joan Hester was transported to Mount Vernon, Lawrence County, Missouri, by Greene County officers to testify at a preliminary hearing on a charge that Jerry Wayne McDaris, Everett's brother, was an aider and abettor in stealing $63. Preliminary hearings had previously been accorded Everett McDaris and his wife, Jacqueline, on charges arising out of the same incident, and Joan testified at those hearings also.
Joan Hester was the only woman to testify at the hearing on August 25, 1969. Another witness at that hearing, Clarence Gwinn, following the hearing and while still in the courthouse, overheard conversation between Everett and Jerry during which Jerry said to Everett with reference to Joan, 'Let's go get that goddamn bitch.'
While Joan was being returned to Greene County by Lawrence County officers, an automobile containing the McDaris brothers followed and caused the officer to accelerate to speeds of 95 to 100 miles per hour. The McDaris vehicle was stopped inside the Greene County line and Joan continued on to her home, being first advised by Greene County officers to call if any of the McDaris people came to her house.
During the late afternoon the McDaris brothers and Karen Bacon stopped in front of Joan's home; Karen went to the door and asked for Joan. Upon being informed that Joan was not there, the parties left and Joan alerted the sheriff's office. Around 9:00 p.m., Springfield and Greene County officers stopped an automobile in the neighborhood of Joan's home. The vehicle belonged to Karen Bacon, and she was riding in the middle of the front seat with Everett driving and Jerry riding in the right front seat. All three got out of the car and a search was conducted of all three persons and of Karen's automobile. A stick of dynamite, fused with detonator in place and wrapped in a 'sock,' was found concealed in the waistband of Karen's slacks. Jerry had previously produced the sock and its contents and placed it on the dash. When the automobile was stopped Jerry told Karen to hide the bomb in her clothing. The defense was that the bomb belonged to Karen and defendant knew nothing about it.
Appellant contends first that the court erred in overruling his motion to suppress the bomb because it was illegally seized 'in that the arresting officers did not have a warrant, nor probable cause to * * * search the automobile in which * * * defendant was riding, nor did they have a warrant or probable cause to make an arrest and make a search pursuant to such arrest.'
Appellant cites a number of cases dealing with similar assertions; however, it is unnecessary to discuss them because there is an obvious and overriding reason for upholding the search and admitting its fruits into evidence in this case. Defendant had no standing to complain of the search because the car was owned and occupied by Karen Bacon; the evidence in question was found on and taken from the person of Karen Bacon, and the defense was that the bomb belonged to her and defendant knew nothing about it. State v. Green, Mo., 292 S.W.2d 283, 286(2, 3); State v. Murray, Mo., 445 S.W.2d 296, 298(8); State v. Booker, Mo., 454 S.W.2d 927, 929(1, 2); and see State v. McDaris, supra, for discussion of other cases and denial of the identical contention.
Appellant's second assignment charges that the court erred in overruling his motion to strike that part of the prosecuting attorney's opening statement and testimony from Charles Faulkner, prosecuting attorney of Lawrence County, which referred to the preliminary hearing of the defendant, 'in that such evidence was highly prejudicial and was calculated to weigh heavily with the jury and caused the jury to prejudge the defendant on the basis of his past conduct, and his participation in a separate and distinct crime.'
The reference in the opening statement was:
The testimony in question was that of Mr. Faulkner described in the opening statement: * * *
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...proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. State v. McDaris, 463 S.W.2d 809, 812 (Mo.1971). However, this rule has certain well-established exceptions, one of which is that evidence of other crimes is competent to p......
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State v. Michaels, 36636
...439 S.W.2d 515 (Mo.1969); State v. Varner, 329 S.W.2d 623 (Mo.1959); State v. Hardy, 365 Mo. 107, 276 S.W.2d 90 (1955); State v. McDaris, 463 S.W.2d 809 (Mo.1971); State v. Jackson, 444 S.W.2d 389 (Mo.1969) and State v. Michael, 361 S.W.2d 664 In addition to the fact that appellant did not ......
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