State v. McLarty
| Decision Date | 10 April 1967 |
| Docket Number | No. 52180,No. 1,52180,1 |
| Citation | 414 S.W.2d 315 |
| Parties | STATE of Missouri, Respondent, v. Robert Jerome McLARTY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Stanley P. Clay, Special Ass't. Atty. Gen., Joplin, for respondent.
Philip A. Maxeiner, Michael N. Newmark, and Lawrence Alan Waldman, St. Louis, for appellant.
Defendant and one Kenny Wade Roberts were charged by information with tampering with a motor vehicle, a felony. Section 560.175, RSMo 1959, V.A.M.S. McLarty was tried separately from his co-defendant; a jury found him guilty and assessed his punishment at imprisonment for one year. He was sentenced in accordance with the verdict to serve his imprisonment in the Workhouse of the City of St. Louis and given credit on the sentence for five months and ten days spent in jail prior to trial. He appeals from the judgment. He was represented by able counsel at the trial and in this court. The case comes to the author on reassignment.
Counsel for defendant brief two points: (1) that the state failed to make a submissible case; and, (2) that the court erred in the admission of evidence secured as a result of an unlawful arrest.
The motor vehicle involved, property of Abe Jones, was a 1962 model blue Chevrolet equipped with a portable type air conditioner hung under and attached to the dash by two metal hangers; two rubber hose ran from the air conditioner through the floorboard. Jones testified that en route home from his employment on October 4, 1965, he stopped at a gasoline service station at about 6:00 P.M., to use the toilet; that as he left the toilet he saw a strange woman drive his automobile out of the service station driveway, without his permission; that he and others called to the driver to stop, to no avail; that he called the police and reported the theft; that the automobile bore license plate number SN3--735. He further testified that he next saw his automobile after it was recovered by the police; that the left side of the air conditioner had been loosened and dropped down from the dash, the hose cut and pulled through the floor.
Patrolman Paul Sellers, a member of the St. Louis Metropolitan Police Department, testified that on the night of October 6, 1965, he and Patrolman Gary Barna were cruising their assigned area in a police car; that at about 11:05 P.M., they observed a blue 1962 Chevrolet, with its domelight on and two men in it, parked alone on an unlighted parking lot behind an apartment building at 1208 Hamilton in the City of St. Louis; that they got out of their cruiser and walked up to the Chevrolet, Sellers going to the driver's side and Barna to the right side; that they found defendant on the passenger side, bent over, holding a flashlight directed on the air conditioner and Roberts on the driver's side stretched over to his right '* * * doing something with a screw on the air conditioner * * * ;' that the left side of the air conditioner was disconnected from the dash, resting on the floorboard with the hose cut loose.
Patrolman Barna's testimony was essentially the same as that of Sellers. He further testified that he knocked on the car window and Roberts opened the left door; that he asked Roberts what he was doing and he replied that he was repairing the air conditioner, that it '* * * had slipped down off the brace and he was trying to put it back * * *;' that he walked to the rear of the Chevrolet, got its license number and asked Sellers to use the cruiser's police radio to check that number for possible theft. At this point no arrest had been made.
Patrolman Sellers further testified that he checked license number SN3--735 by radio; then he and Barna walked back to the Chevrolet and immediately arrested defendant and Roberts for tampering with a stolen automobile. He further testified that when they got back to the Chevrolet to make the arrest '* * * they (defendant and Roberts) were both trying too (sic) get the air conditioner outside the automobile * * *;' that defendant '* * * had his head down beneath the dashboard, close to the air conditioner, which was in the middle of the dashboard.'
Photographs of the inside of the Chevrolet taken at Police Headquarters in the presence of Patrolman Barna were admitted in evidence over objection of defendant. Both officers testified that these photographs show the interior of the automobile and the position of the air conditioner exactly as they saw it from outside immediately before and at the time of the arrest.
Defendant did not testify. His only witness was Roberts, who admitted that he had entered a plea of guilty to the charge of tampering with Jones' automobile, and had been convicted of three prior felonies. Roberts testified that on the night of October 6, he borrowed the automobile from Gwendolyn, '* * * a young lady that I was very familiar with * * * a young lady that lived--well, she lived next door to me; the two of us had been pretty close for some time * * *;' that he was '* * * not positive of her last name * * *;' that he thought she was now in the penitentiary; that he lived in a four-family flat at 4229 Delmar and his mother also lived there; that defendant worked for his mother and '* * * at times he stayed there also, you know, when he was working * * *,' but defendant's '* * * permanent address at the time * * *' was on Clara; that he and defendant walked from the flat to a nearby corner tavern and on their return his girl friend was there; that he '* * * borrowed the car to make a run myself * * *' to an apartment building at 1208 Hamilton and, at defendant's request, to take him '* * * out to his house * * *;' that when he got in the automobile he noticed the air conditioner '* * * was kind of loppy; in other words, hanging somewhat * * * on an angle * * * hit a little bump * * * it would shake and rattle * * *;' that he drove to 1208 Hamilton, stopped and got out for about ten or fifteen minutes; that defendant remained in the car, waiting for him; that the police '* * * arrived almost immediately * * * after his return to the automobile;' that when the police first arrived defendant '* * * was steadying * * *' the air conditioner, '* * * leveling it up for me to tighten * * * once of the bolts * * *.'
Defendant's point that the state failed to make a submissible case is confined solely to a contention that the state failed to prove one essential of the crime charged, that is, criminal intent to tamper with Jones' automobile without permission of the owner. He does not contend the state failed to prove (1) that he tampered with the automobile, or, (2) that such tampering was without the permission of the owner; his contention is: no proof of criminal intent to tamper without permission. His contention is based on this argument:
The state contends that it was not essential that it prove defendant's criminal intent. During oral argument in this court, in response to an inquiry from the Bench as to whether it was the state's position that there was sufficient evidence to show criminal intent should the court hold criminal intent a necessary ingredient of the offense, counsel for the state asserted: We do not agree with the state's contention or the 'offhand' reply of its counsel.
'It has been held that, as a general rule, a statute defining a crime is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms required, and that before a statute will be construed so as to eliminate guilty knowledge or intent as an element of an offense, the legislative intent to do so must be clearly apparent.' 22 C.J.S. Criminal Law § 30, p. 104...
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...of an offense, legislative intent to do so must be clearly apparent. State v. Gordon, 536 S.W.2d 811, 817 (Mo.App.1976); State v. McLarty, 414 S.W.2d 315, 318 (Mo.1967). The mere absence of the word "knowingly" does not negate the intent requirement; see Morissette v. United States, 342 U.S......
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...heard to say he had no criminal intent in doing it." State v. Silva, 130 Mo. 440, 464, 32 S.W. 1007, 1014 (1895). Also see State v. McLarty, 414 S.W.2d 315 (Mo.1967); LaFave & Scott, Criminal Law § 31 This principle is yet recognized in The Criminal Code. Section 562.021.2 in part reads as ......
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... ... Whether criminal intent is an element of a statutory crime depends on the intent of the legislature, and is a matter of statutory construction. State v. McLarty, 414 S.W.2d 315, 318(1--4) (Mo.1967). The Supreme Court of Missouri has held that under the prior Uniform Narcotic Drug Act and §§ 195.020 and 195.240 that knowledge on the part of an accused that the item sold was a narcotic drug was not included as an element of the offense under either ... ...
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