State v. Owens

Decision Date14 June 1965
Docket NumberNo. 50686,No. 2,50686,2
Citation391 S.W.2d 248
PartiesSTATE of Missouri, Respondent, v. Dempsey OWENS, Jr., Appellant
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.

Richard J. Childress, St. Louis, for appellant.

BARRETT, Commissioner.

Dempsey Owens, Jr., with four prior felony convictions, has been found guilty of illegal possession of narcotics, 1.32 grams of heroin, and sentenced to ten years' imprisonment. RSMo 1959, Secs. 195.020, 195.200, V.A.M.S. The transcript of the record shows that Dempsey was arraigned and entered a plea of not guilty on June 6, 1963. On the following day, June 7, the court finding upon examination of the defendant that he was an indigent appointed, without compensation, a distinguished professor of law to represent him in the trial of the cause. And in March 1964 upon conviction and after permitting him to appeal as a poor person and furnishing a free transcript of the record (RSMo 1959, Sec. 485.100, V.A.M.S.) the court again appointed the same counsel to represent him upon his appeal to this court.

In October 1963, alleging an illegal arrest and a consequent illegal search and seizure in violation of the state and federal constitutions, counsel filed a motion to suppress 'all evidence' obtained by two St. Louis police officers on May 21, 1963, the date of the offense and the day on which Dempsey was arrested. Simultaneously counsel filed a motion to dismiss the amended information, alleging as grounds that on May 21, 1963, Dempsey was taken before a judge of the St. Louis Court of Criminal Correction for a preliminary hearing and although an indigent and entitled to counsel, a right of which he was then unaware, the judge did not inform him of his rights. It was alleged that the preliminary was 'a critical stage in the criminal proceeding' against him and that only with counsel at the preliminary could he secure 'a fair and equal trial.' Following this statement in counsel's plea on behalf of Dempsey it is asserted, since the statutes and rules of criminal procedure provide for the appointment of counsel upon arraignment (Criminal Rule 29.01, V.A.M.R.; RSMo 1959, Sec. 545.820, V.A.M.S.) and because he was entitled to consult counsel after arrest and while in custody (Criminal Rule 29.05), and not having been furnished counsel upon the required preliminary hearing (Criminal Rules 23.03, 23.08; RSMo 1959, Sec. 544.250, V.A.M.S.), that his rights guaranteed by both the state and federal constitutions, particularly the due process and equal protection provisions, had been infringed. On the following day, October 4, 1963, counsel filed a third motion for an 'order of court taxing cost of depositions to the State of Missouri.' In this sixteen-point motion it was alleged that he desired to take the depositions of the two arresting officers, patrolmen Lodl and Smith, and of Melvin Bingham, a third police officer, well acquainted with Dempsey, who appeared upon the scene of the arrest.

After a lengthy hearing, consisting of the testimony of the defendant and the three named police officers, the court overruled all three motions and this action by the court is the basis of the assignments of error now made upon this appeal. It should first be noted in passing, however, that after the motions were overruled on October 21, 1963, and the case proceeded to trial on November 4, 1963, except for expert testimony as to the heroin, the state's witnesses were the three policemen whose testimony before the jury was substantially the same as they testified upon the motions before the court. The defendant offered no evidence upon the principal trial and as indicated the jury found him guilty and since he had prior felony convictions the court fixed his punishment. RSMo 1959, Sec. 556.280, V.A.M.S. It may also be interpolated that officer Smith did not testify at the preliminary hearing. Officer Lodl did testify at the preliminary and in response to defense counsel's inquiry said that he gave the same evidence at the preliminary, 'I testified as to what I had seen,' as he gave upon the motion to suppress.

Both upon the hearing of the motion to suppress evidence and upon the trial of the cause the facts as the trial judge or the jury could reasonably find them were that on May 21, 1963, about 1:15 in the morning uniformed police officers Lodl and Smith were cruising in a marked police car north on Hodiamont at Etzel near a National Food Store. The parking lot to the rear of the food store was 'illuminated' by a night light at the rear of the building, a lighted icehouse and a street light and except for the police and Dempsey there was no other person or traffic on the street or in the neighborhood. There was an automobile parked at the rear of the store. Officer Smith was driving and Lodl said that he saw Dempsey 'walking catercornered' across the parking lot towards the automobile and he told Smith to stop. As they pulled into the curb he 'observed the subject throw a shiny object to the ground.' Smith stopped the police car and both officers alighted, Lodl to pick up the object 'and see what it was' (he thought it was a gun), and Smith 'to stop that man.' As Lodl walked towards the shiny object he 'observed the subject drop a piece of paper to the ground, and my partner picked it up and handed it to me, and I opened it and it contained twenty-two capsules containing a white powder.' The paper Smith picked up was a 'Double-Mint Chewing Gum wrapper' and inside the wrapper there was a cigarette paper and the 'white powdery substance' turned out to contain 1.32 grams of heroin. And the shiny object turned out to be a loaded .32 caliber pistol which Dempsey said 'was his too.' Lodl asked Dempsey where he got the package of powder, 'at first he denied it and then finally said, 'you got me good this time.'' Lodl said that there was no reason for stopping the police car other than seeing Dempsey throw the 'shiny object.' Lodl said, 'I seen Mr. Owens drop the package, and my partner reached down and picked it up, and he turned around and handed it to me, and I opened it, and during this time there was no conversation as yet taking place.' Smith said that after dropping the paper wrapper Dempsey 'stopped on his own accord to face the officer' (Lodl). Lodl testified that after he opened the package handed to him by Smith 'Then I placed him (Dempsey) under arrest for Possession of Narcotics. * * * Well, I told the man he was under arrest for Possession of Narcotics, and then I walked on back and picked up this revolver.' Lodl said that he saw Dempsey throw the chewing gum wrapper, he dropped it, Lodl said, not more than an inch from his right foot, and there was no search of his person until 'after he told me he had that bottle in his coat. I hadn't search him up to that point.' And, incidentally, the bottle contained amphetamine hydrochloride, but the appellant was not charged with the possession of this particular drug.

The circumstances as they were made to appear upon the appellant's motion, as well as upon the trial, have been set forth in elaborate detail because they completely refute as a matter of fact the foundation of his claim of an invasion of constitutional rights by reason of an illegal arrest and a consequent unlawful search and seizure. And in these particular circumstances, and as the trial court found the facts in his memorandum, it is not necessary to factually distinguish the cases relied on by the appellant (State v. Cuezze, Mo., 249 S.W.2d 373; State v. Morice, Mo., 79 S.W.2d 741) or to examine the asserted constitutional guaranties involved in an illegal arrest and a consequent unlawful search and seizure. In the principal case relied on, Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, it was alternatively observed, depending on the fact, that '(i)f the petitioner thereafter voluntarily revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence.' Almost identical circumstances and asserted constitutional questions were involved in State v. Cantrell, Mo., 310 S.W.2d 866, (a burglary and larceny case) and State v. Harris, Mo.App., 325 S.W.2d 352, the latter a prosecution for possession of lottery tickets. In both cases the evidence was detailed and the statutes governing police officers in St. Louis examined (RSMo 1959, Sec. 84.090(10) V.A.M.S.), and it was held that the arrests were lawful and 'where papers and effects seized are open to the eye and hand' there has been 'no case of search and seizure violative of defendant's right to be secure in his person under Article 1, Section 15, of the Constitution is presented.' In view of the facts as they have been detailed and were found there is no point in examining into the constitutional rights alleged to have been infringed; the arrest was lawful and certainly as to the heroin, the only offense involved here, there was no invasion of the right of 'the people' to 'be secure in their persons * * * from unreasonable searches and seizures' (Const.Mo. Art. 1, Sec. 15, V.A.M.S.) or by the same token an infringement by the State of Missouri of any right protected by the Fourteenth Amendment to the Constitution of the United States.

Furthermore, it may be noted at this juncture, the circumstances as testified to by the police officers sustain the charge and jury finding of unlawful possession of a narcotic drug. State v. Worley, Mo., 375 S.W.2d 44.

Also, setting forth in detail the circumstances of Dempsey's arrest and the testimony adduced by him upon his motion to suppress evidence serves to refute if not destroy his second point that the trial court's denial of his motion for an order 'taxing cost of depositions to the State of Missouri' was likewise an infringement of his...

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  • State v. Ussery
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    ...and that '(i)t is difficult to evaluate the significance of the use of the transcript at the preliminary hearing.' As in State v. Owens, Mo.Sup., 391 S.W.2d 248, there is nothing in the record to indicate that by reason of the preliminary hearing the state 'either sought or gained the sligh......
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