State v. Napper
| Decision Date | 13 July 1964 |
| Docket Number | No. 1,No. 50404,50404,1 |
| Citation | 381 S.W.2d 789 |
| Parties | STATE of Missouri, Respondent, v. Henry Cleo NAPPER, Appellant |
| Court | Missouri Supreme Court |
Lawrence J. Lee, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant, Henry Cleo Napper, was charged with stealing personal property of the value of $50 or over in the City of St. Louis. The information invoked the provisions of the habitual criminal act and alleged that defendant had theretofore been convicted of certain felonies. Trial of the case before a jury resulted in a verdict finding him guilty of stealing property of a value of $50 or more. It was stipulated and agreed between the State and defendant that he had been previously convicted of three felonies, sentenced and imprisoned therefor and subsequently discharged, all as charged in the information. After his motion for new trial was overruled, he was accorded allocution, and sentenced, in accordance with the punishment theretofore assessed by the Court, to be committed to the Department of Corrections for a term of six years. He appealed to this Court, after which his trial counsel who had represented him and was present at all trial and after trial proceedings, withdrew as his counsel. He is represented here by able counsel who has filed a brief in his behalf.
In his motion for new trial he makes nine assignments of error, only three of which are presented for review here, viz., (1) that the evidence was insufficient that the items allegedly stolen had a value of $50 or more, (2) that the Court erred in overruling defendant's motions to suppress evidence, and (3) that the Court erred in giving instruction No. 3. After a jury had been impaneled and sworn to try the issues, out of the hearing of the jury defendant orally moved to suppress the evidence and gave as reasons therefor that at the time of defendant's arrest and search he was a public carrier, that there was no probable cause for the arrest, 'and for that reason it is inadmissible as evidence.' At the same time defendant moved to refile a like motion which the Court file disclosed had been filed in the cause in the Court of Criminal Correction, but not refiled in the trial Court or prior thereto submitted or brought to that Court's attention. Leave was granted to refile that motion and both motions were overruled as being untimely and unseasonably filed. The transcript of the record approved by trial counsel and filed here does not contain this written motion to suppress evidence.
No evidence was offered by the defendant. The evidence adduced in behalf of the State warrants a finding of the following facts. Late in the afternoon of February 27, 1963, Phillip William Wilhauk of Hillsboro, a student at St. Louis University, parked and left his two-door Chevrolet Corvair, in a parking lot at the rear of The Playboy Club, 3930 Lindell Boulevard, in the City of St. Louis, where he was employed. Inside his locked automobile, he left an olive-drab colored suit of clothes hanging and a pair of dark tan man's shoes, size 10 1/2 on the floor in the back seat. He left his work and returned to his automobile at about one o'clock a. m. on February 28, where he found its right door ajar, the vent window shattered, the window lock broken, and his suit and shoes missing. He immediately drove to the Lucas Avenue Police Station where he reported the theft and there found and identified his suit and shoes. He testified that he bought the suit about two weeks before the incident from Downs Store on Grand Avenue for Seventy-Five Dollars and bought the shoes, which he had owned about six months, from Wolff's for Twenty-Five Dollars. Both articles of clothing were identified by Wilhauk, and the two arresting officers, and then offered in evidence and passed to the jury for their examination over the objection of defendant, the objection being that they were 'inadmissible.' At about eight o'clock, p. m., after dark, on February 27 officers James Fitzgerald and Joseph Burgoon of the St. Louis Metropolitan Police Department mobile reserve were driving west in the alley between Grandel Square and Washington Avenue, approximately six or seven blocks from the 3900 block of Lindell Boulevard. Proceeding through the alley the officers observed a Harris taxicab parked on a lot and backed up to a hotel with the cab lights out, the motor running, and defendant in the driver's seat. As the officers drove onto this lot they also observed one Aaron Burgess, known to them as a 'car clotter' (thief), in the automobile of another with the dome light on rifling through a suitcase and clothes. Known also to the officers was Burgess' method of using a cab as an accomplice for transportation in connection with his theft operations and that he was 'working' this night. Approximately twenty feet distant was the cab occupied by defendant. Stopping the patrol car on the lot Officer Fitzgerald got out and as he was approaching the cab defendant attempted to pull away moving the cab approximately five to ten feet from the building, when the officer called to him to halt. While questioning the defendant as to why he was in that area the officer observed a man's olive-drab colored suit in plain view on the front seat of the cab. To...
To continue reading
Request your trial
-
State v. Garrett
...appeal.' Loc. cit. 416 S.W.2d 120(7--9). Any point as to the admissibility of the documents was thus waived or abandoned. State v. Napper, Mo., 381 S.W.2d 789, 792(5); State v. Jones, Mo. 386 S.W.2d 111, 115(10). The remand in this case was limited to a consideration of the evidence already......
-
State v. Reask
...was lent to the arrest without a warrant therefor. State v. Redding, Mo., 357 S.W.2d 103; State v. Witt, Mo., 371 S.W.2d 215; State v. Napper, Mo., 381 S.W.2d 789. The further inquiry is whether the officers, without a warrant, could legally enter the apartment where defendant was situated,......
-
State v. Williams, 43546
...evidence from which to determine market value in the absence of evidence of the condition of the stolen item. However, State v. Napper, 381 S.W.2d 789 (Mo.1964) and State v. Bresse, 326 Mo. 885, 33 S.W.2d 919 (1930) specifically state that those two facts are sufficient by themselves to est......
-
State v. Heitman, 60872
...sufficient to raise in the prudent man a belief that A crime has been committed, and from this probable cause arose. See State v. Napper, 381 S.W.2d 789 (Mo.1964). The State sustained its burden and probable cause was sufficiently shown to support the arrest and the subsequent seizure of th......