State v. Rebasti
| Decision Date | 30 December 1924 |
| Docket Number | No. 25255.,25255. |
| Parties | STATE v. REBASTI. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.
Charles Rebasti was convicted of robbery, and he appeals. Reversed and remanded.
Clarence Wofford and Bert S. Kimbrell, both of Kansas City, for appellant.
Jesse W. Barrett, Atty. Gen., and Allen May, Asst. Atty. Gen., for the State.
Appellant, in the circuit court of Jackson county, was found guilty of robbery in the first degree, and his punishment assessed at 10 years in the state penitentiary. He was charged jointly with Ernest Hodges, but obtained a severance. He asserts here that a case against him was not made out, and therefore it is necessary to review the evidence.
The robbery was alleged to have been committed October 13, 1922, between 11 and 12 o'clock in the forenoon. On that morning one Thomas Crump, messenger for the Live Stock state Bank, was carrying $9,500 to his bank from the Continental National Bank in Kansas City. About 11:35 a. m., he boarded a street car at Twelfth and Main streets and took a seat near the rear end of the car. Suddenly he was hit on the head and a gun placed at his stomach by a man who took the money out of his pockets and backed to the front door of the car, and with another man, got off at the front end of the car. The two men ran to an automobile, which was about 150 feet from the street car, and escaped.
On October 21, 1922, the defendant was arrested, taken to the police station, and searched. The key to a safe deposit box in the New England Safe Deposit Vaults Company, and receipt for rent of same, were found on his person. Crump identified the defendant at the jail after the latter's arrest, but later was not very positive of his identification. Four other witnesses of the robbery also identified the defendant as one of those who perpetrated it. Lloyd Brashear, a window washer, was on the car. He testified he had a good view of Crump and of the man who robbed him. He identified the defendant and the other robber after their arrest. Eugene V. Connant was on the street at the time, and saw the two men running from the street car, a distance of 30 or 40 feet; he later saw both in the county jail and identified them; the defendant was one of them. Griffith H. Connell, conductor of the street car on which the robbery occurred, testified that he was standing within a few feet of Crump at the time. He distinctly saw the man who took the money, and in the courtroom positively identified the appellant as the robber. One W. C. Hoffman was on the street car at the time of the robbery. He saw the robber take the money away from the messenger; he also identified Rebasti in the courtroom as the robber.
The assistant federal reserve agent at Kansas City testified to the printing and engraving and the sending out of federal reserve notes; he testified that on the 6th of October, 7 days before the robbery, he delivered to the Federal Reserve Bank of Kansas City, 200 $5 notes, giving the numbers. The paying teller of the Federal Reserve Bank testified that on the morning of the 13th he delivered to the messenger of the Continental National Bank a quantity of money, including $12,000 in $5 bills.
William R. Ricketts, manager of the New England Safe Deposit Vaults Company, testified that Charles Rebasti rented deposit box No. 1832, in his institution. Ricketts was present afterwards when, by virtue of a search warrant, the box was opened. Guy 0. Seaton, vice president of the Live Stock State Bank where Crump was employed as messenger, testified that he was in the New England safe deposit vault when Charles Rebasti's box was opened, and among other things it included 197 $5 bills, bearing numbers included in the $5 bills mentioned by the assistant federal reserve agent as having been delivered by the federal reserve agent on the 6th at the Federal Reserve Bank.
All this evidence, relating to the contents of the safe deposit box and the renting of it was objected to and exceptions saved. Before the trial defendant filed a motion to suppress the evidence, alleging that when arrested he was carrying a key to a safe deposit box, and that a receipt for the rental of the box was taken from his person, in violation of his rights under sections 11 and 23, art. 2, of the Constitution of Missouri, and in violation of the defendant's rights under the Fourth and Fifth Amendments to the Constitution of the United States; that afterwards his safe deposit box was broken into without warrant or authority of law, in violation of the said sections of the Constitution of Missouri and of the United States, and certain memoranda, written and printed, of the contents thereof, taken by the state for the purpose of using the same against the defendant. The motion prayed that all such evidence be suppressed, and the memoranda delivered to the defendant or destroyed. The court took evidence on the motion.
William Doran, a police detective, testified that he arrested the defendant October 21st, and took him to the station, where the key to the safe deposit box and receipt for the rent of it were taken from him. Doran afterwards called up Mr. Gregory, a federal narcotic agent, who caused a search warrant to be issued by George D. Beardsley, United States Commissioner, directing Gregory in the name of the President of the United States to search the safe deposit vaults of the New England Company. Gregory, in company with Mr. Greeson, also a narcotic agent, accompanied by Mr. Seaton, vice president of the Live Stock State Bank, and Mr. Doran presented themselves at the New England Company armed with the search warrant issued to Mr. Gregory, and demanded the right to search the box of the defendant. The Vaults Company delayed the matter until its attorney could arrive, and then the search was made and the contents of the box noted in the memoranda preserved. Mr. Seaton gave the numbers of the $5 bills found there, which he afterwards testified to at the trial. The court, on hearing this evidence, overruled the motion, and error is assigned to that ruling on several grounds.
I. Appellant claims that a case was not proven against him, and earnestly urges that he be discharged in this court. From the above brief statement of the facts, it is clear that the evidence, aside from that obtained by the search of defendant's deposit box, was entirely sufficient to sustain a verdict of guilty.
II. No complaint is made as to the manner of the defendant's arrest : He was lawfully arrested. Being lawfully arrested, the officers had a right to search him and his possessions in the room where he was arrested, and take from him any article which might be used in securing his conviction. State v. Owen (Mo. App.) 259 S. W. .100, 32 A. L. R. 383; Holker v. Hennessey, 141 Mo. 527, loc. cit. 539, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; State v. Laundy (Or.) 204 P. loc. cit. 975, 976; People v. Cona, 180 Mich. loc. cit. 650, 147 N. W. 525; People v. Kalnin (Co. Ct.) 189 N. Y. S. 359; Territory v. Hoo Koon, 22 Haw. loc. cit. 602; State v. Fuller, 34 Mont. 12, 85 P. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648. The officers had a right to use the information they acquired in making that search in any way which would lead to the conviction of the defendant.
III. Using the information obtained in searching the defendant, the state officers, under sections 4116 and 4130, R. S. 1919, of Missouri, could have caused a search warrant to be issued under state authority, and could have searched the safety deposit box. They had complete information so that a search warrant could have met every requirement. The officers knew, or had reason to know, what was in the safe deposit box. Instead of that, the state officers turned the matter over to the federal narcotic agents. Mr. Gregory opened the box and made the search by virtue of the warrant issued by the United States Commissioner, Beardsley, and while Mr. Doran was present he did not conduct the examination nor participate in it. It was solely under the authority of the federal agents; therefore it was not in contravention of sections 11 and 23 of the state Constitution, which protects against unreasonable search only on the part of state officers and state agents. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; McGrew v. United States (C. C. A.) 281 F. 809; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; State v. Owen (Mo. Sup.) 259 S. W. 100, 32 A. L. R. 383.
The fact that Doran gave information to the federal officers would not affect this question. The federal officers had a right to proceed to make the search for any violation of the federal law, and with a valid search warrant could have obtained such information when desired. Doran did not control the federal agents, and had no authority whatever in the conduct of the investigation. He had a right to give them the information as.,to the ownership of the safe deposit box; the use they made of it afterwards did not affect his duties nor affect the right of the state to avail itself of the information it might obtain in that way. So far as the state Constitution is concerned, the motion to suppress was properly overruled.
IV. A different question is presented when we consider the claim that the production of the evidence obtained was in violation of the defendant's rights under the federal Constitution. State courts are as much under obligation to protect the rights of defendant guaranteed him by the United States Constitution, as those guaranteed him by the Constitution of this state, and the federal Supreme Court may review the action of this court in consideration of this question. We are bound to follow the rulings of the federal court in respect to this particular matter.
The search warrant is conceded by the state to be insufficient and...
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