State v. Randazzo

Citation300 S.W. 755
Decision Date12 December 1927
Docket NumberNo. 27912.,27912.
PartiesSTATE v. RANDAZZO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Jack Randazzo was convicted of larceny of an automobile, and he appeals. Affirmed.

W. W. Graves, Jr., E. J. Curtin, and E. M. Tipton, all of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

On November 7, 1925, the defendant was charged by indictment in the circuit court of Jackson county, with having, on October 6, 1925, stolen a Ford touring car, the property of W. G. Ekey, of the value of $400, having motor No. 12036457. On February 9, 1926, at the January term, there was a mistrial. At the second trial at the same term, on February 15, 1926, the defendant was found guilty as charged in the indictment, his punishment assessed by the jury at imprisonment in the penitentiary for a term of five years, and he appealed from a sentence in accordance with the verdict.

Appellant's learned counsel assign but one error, that the court erred in overruling defendant's motion to suppress evidence obtained without a search warrant. This is the only error discussed in appellant's brief and we shall confine our consideration of the case to this assignment. State v. Bishop (Mo. Sup.) 296 S. W. 147, and cases cited.

The record recites that on December 14, 1925, the defendant "files motion to suppress or return to said defendant a certain Ford automobile, No. _____, taken and retained in violation of said defendant's legal and constitutional rights." This motion was continued to the January term, 1926. On January 9, 1926, this and other criminal causes were transferred to division 6 of the court, in which Judge Dew presided. On January 10, 1926, this motion was taken up, heard, and overruled by Judge Dew in said division of the court, as appears from the record. On February 8, 1926, on the application of the defendant, a change of venue was awarded to division 4 of the court where the two trials were had, Judge Johnson presiding. The bill of exceptions was signed by Judge Johnson on November 20, 1926, and filed on the same day. It begins with the proceedings at the second trial, and contains none of the evidence heard in Judge Dew's court on the motion to suppress evidence.

The evidence at the second trial shows that G. W. Ekey's Ford touring car was stolen in Kansas City, Mo., on the night of October 6, 1925. A few days later the police department notified him that his car had been found. He identified it as his car. The motor or engine, which bore the serial No. 12036457, had been removed. The motor was found by officers Duncan and Owens on Sunday morning, October 11, 1925, in the defendant's garage, in an old building formerly used as a stable, at 2500 Grand avenue, Kansas City, Mo. The serial number had been filed off, but when what is known as the acid test was applied, the serial No. 12036457 was brought out. Certain accessories which Ekey had bought with the automobile in the summer of 1925 were also found in defendant's garage. In the view we take of the case, it will not be necessary to go, further into the evidence.

After the trial began and Mr. Ekey had testified to the circumstance of the loss of his touring car and had identified the motor or engine above mentioned, the defendant objected to the introduction of the motor in evidence and offered to prove by certain witnesses who had not testified at the hearing of the motion to suppress evidence in Judge Dew's court that Officers Duncan and Owens had, in defendant's absence, unlawfully entered and searched defendant's garage without a warrant, and had so secured the motor or engine offered in evidence, in violation of defendant's right to immunity against unlawful search and seizure provided by sections 11 and 23 of article 2 of the Missouri Constitution. It was admitted that the motor offered in evidence was the same motor which was involved in defendant's motion to suppress the evidence presented to Judge Dew. The prosecuting attorney objected to the offer of further proof by the defendant for the reason:

"That since this matter was passed upon in division 6 upon a motion filed, and the testimony and the proof of the witnesses was introduced, therefore it becomes res judicata."

After hearing the testimony of several witnesses offered by the defendant as to the circumstances of the search of defendant's garage and the seizure of the motor offered in evidence, the court said:

"This matter was presented to Judge Dew and an opportunity was there had to present this additional testimony and it was not presented. And if I failed to follow the ruling of Judge Dew on this motion to suppress, in my opinion it would be reviewing the action of another division of this court, which the statute expressly prohibits. I will overrule the motion."

The record shows that the motion to suppress the evidence of the finding of the motor was heard and overruled in Judge Dew's division. Neither the evidence that was offered at the hearing of the motion nor the ruling of the court thereon, nor an exception to the ruling, was saved by bill of exceptions. The order of the court overruling the motion to suppress the evidence was res adjudicata. State v. Zugras, 306 Mo. 492, 496, 267 S. W. 804; St. Louis v. Querl Lbr. Co., 277 Mo. 167, 210 S. W. 21; State v. Windsor (Mo. App.) 289 S. W. 663; State v. Mischler (Mo. App.) 289 S. W. 669.

In St. Louis v. Querl Lbr. Co., Judge Faris said:

"Appellant's failure to except to the action of the trial court, at the time at which the court sustained the exceptions first filed, precludes upon this appeal any review of the court's action thereon," citing cases.

In State v. Windsor, supra, the identical question here presented was ruled adversely to appellant's contention. The court said:

"The question as to whether the evidence should or should not have been suppressed was tried in the hearing on the motion to quash the search warrant and to suppress the evidence obtained thereunder, and the action of the court in suppressing this evidence was res adjudicata. The evidence was out of the case and not a matter to be gone into again on a trial of the cause on its merits," cit...

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15 cases
  • State v. Park
    • United States
    • United States State Supreme Court of Missouri
    • 2 d6 Março d6 1929
    ......4117, R.S. 1919. (2) Everything that happened in connection with the search warrant should be suppressed. State v. Pierce, 269 S.W. 406; State v. Randazzo, 300 S.W. 755. (3) It was error to admit the testimony of the witnesses as to the alleged stolen tires and harness which they took on the second search April 9th. State v. Perkins, 285 S.W. 152. The officers after executing the search warrant on April 5th further executed the same search warrant ......
  • State ex rel. U.S. Fire Ins. Co. v. Terte
    • United States
    • United States State Supreme Court of Missouri
    • 1 d1 Novembro d1 1943
    ...... Aetna Life Ins. Co. v. Martin, 108 F.2d 824. (3). Defendant's demurrer to plaintiff's petition having. been denied, and defendant thereafter having answered, the. question raised by the demurrer cannot be considered on. subsequent motion by a judge of the same court. State v. Randazzo, 300 S.W. 755; Conkling v. Henry Lbr. Co., 34 S.W.2d 990. (4) The trial court has not any. discretion as to whether it will assume jurisdiction of a. complaint instituted under the Declaratory Judgment Act. City of Joplin v. Jasper County, 161 S.W.2d 411;. Aetna Life Ins. Co. v. Haworth, ......
  • State v. Park
    • United States
    • United States State Supreme Court of Missouri
    • 2 d6 Março d6 1929
    ...... stolen property, and no positive proof that would authorize a. search in the nighttime under Sec. 4117, R. S. 1919. (2). Everything that happened in connection with the search. warrant should be suppressed. State v. Pierce, 269. S.W. 406; State v. Randazzo, 300 S.W. 755. (3) It. was error to admit the testimony of the witnesses as to the. alleged stolen tires and harness which they took on the. second search April 9th. State v. Perkins, 285 S.W. 152. The officers after executing the search warrant on April. 5th further executed the same ......
  • Young v. Pressgrove
    • United States
    • United States State Supreme Court of Missouri
    • 10 d1 Junho d1 1946
    ...... Judge Williams. Therefore the court erred in setting aside. the order of Judge Williams and the stipulation. State ex. rel. Lentz v. Fort, 178 Mo. 518; Buchholz v. Manzella, 158 S.W.2d 200; Jende v. Simms, 166. S.W. 1048; State v. Randazzo, 300 S.W. 755. (9). ......
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