State v. Richards, 32729.

• Decision Date: 20 December 1933
• Docket Number: No. 32729.,32729.
• Citation: 67 S.W.2d 58
• Parties: THE STATE v. TOM RICHARDS, Appellant.
• Court: Missouri Supreme Court

67 S.W.2d 58

THE STATE v. TOM RICHARDS, Appellant.

No. 32729.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Appeal from Carroll Circuit Court. — Hon. Ira D. Beals, Judge.

REVERSED AND REMANDED.

H.L. Moore, W.A. Franken and R.H. Moore for appellant.

(1) The court erred in overruling defendant's motion to quash the search warrant, suppress the evidence and return the property seized, for the following reasons: (a) Affidavit and warrant described property as "1 Revolving Pistol 38 caliber, police special." Property seized was a 32 caliber revolver and a sheepskin coat. Property seized was not that described in warrant, and therefore was illegally taken. 56 C.J. 1244; Marron v. United States, 48 Sup. Ct. 74, 275 U.S. 192; In re 191 Front Street, 5 Fed. (2d) 282; People v. Preuss, 225 Mich. 115, 195 N.W. 684. (b) Search was at night, for stolen property, under Sections 3769 to 3771, Revised Statutes 1929. Section 3771, which regulates nighttime search for stolen property, provides that: "If there be positive proof that any property stolen or embezzled is concealed in any particular place or house, the warrant may order the searching of such place or house in the nighttime. Affidavit and warrant, at best, authorized only daytime search, and search and seizure at night were illegal. 56 C.J. 1240, sec. 159; Atlanta Ent. v. Crawford, 22 Fed. (2d) 834; State v. Cain, 31 S.W. (2d) 559; State v. Miller, 46 S.W. (2d) 541; Garges v. State, 48 S.W. (2d) 625. (c) Affidavit and warrant were further totally void through failure to show even probable cause for warrant. 56 C.J. 1213; State v. Naething, 300 S.W. 829; State v. Lock, 259 S.W. 121; State v. Hobbs, 279 S.W. 200; State v. McCowan. 56 S.W. (2d) 410; State v. Smith, 262 S.W. 65; State v. Hall, 265 S.W. 843; Atlanta Ent. v. Crawford, 22 Fed. (2d) 834; Garges v. State, 48 S.W. (2d) 625; State v. Tunnell, 259 S.W. 128. (d) Search was not incident to arrest and valid warrant was necessary, 56 C.J. 1200; State v. Williams, 14 S.W. (2d) 435; State v. Rebasti, 267 S.W. 858; State v. Grubbs, 289 S.W. 852; Marron v. United States. 48 Sup. Ct. 74, 275 U.S. 192; Agnello v. United States, 46 Sup. Ct. 4, 269 U.S. 20, 8 Fed. (2d) 120; Wallace v. State. 42 Okla. Cr. 143, 275 Pac. 354; State v. Wentzel, 121 Ore. 561, 254 Fed. 1010. (e) Since articles taken were improperly seized and the warrant was void, the search and seizure were illegal and unreasonable and defendant's motion, being timely presented, should have been sustained. State v. Rebasti 267 S.W. 858; State v. Owens, 259 S.W. 100; State v. Lock, 259 S.W. 116; State v. Tunnell, 259 S.W. 128; Silverthorne Lumber Co. v. United States, 40 Sup. Ct. 182, 251 U.S. 385; State v. Hall, 265 S.W. 843. (2) The court erred in permitting the State to introduce in evidence against defendant certain property (a 38 caliber revolver, a black rag and a canvas sack) taken, a week after the crime, from the residence of Henry Wright, who was jointly charged with defendant. (a) Articles were not shown to have been used in or connected with crime. (b) Any conspiracy that Thompson's joint identification might tend to establish between defendant and Wright was naturally long since ended for all purposes, and evidence was not part of res gestae. State v. Reich, 239 S.W. 835; State v. Haves, 249 S.W. 49; State v. Buckley, 298 S.W. 780; State v. Toohey, 203 Mo. 674; State v. Stogsdill, 23 S.W. (2d) 30; State v. Costello, 252 S.W. 727; State v. Pratt, 121 Mo. 572; State v. Ruck, 194 Mo. 433, 154 N.W. 763. (c) Such evidence could not tend to prove defendant's participation in conspiracy, which was the only issue in the case, except by founding a presumption upon a presumption, which is improper. State ex rel. v. Cox, 250 S.W. 551; United States v. Ross, 92 U.S. 284; Harding v. Federal Life Ins. Co., 34 S.W. (2d) 198; State v. Porter, 207 S.W. 777; State v. Creed, 252 S.W. 678. (3) The court erred in permitting counsel for the State, over defendant's objection, to read to the jury at the beginning of the trial the verified information filed against this defendant, because said information, over the oath of the prosecutor, charged defendant jointly with one Henry Wright, who had been convicted of murder in the first degree under said information in the same court only two days before defendant's trial, and for this reason was highly prejudicial to defendant. The court gave no instruction that this was a formal charge and was not to be considered as evidence. R.S. 1929, Art. 12, Ch. 29, sec. 3681; State v. Gamble, 108 Mo. 500. There is no reason why the rule should differ from civil cases. Kirkpatrick v. Wells, 51 S.W. (2d) 38. (4) The court erred in refusing to permit counsel for defendant in defendant's opening statement to state to the jury the relation of the evidence to be adduced to the law and to the instructions to be given by the court on reasonable doubt. Scott v. Commonwealth, 9 Ky. App. 835; People v. Smith, 177 Mich. 358; People v. Tum, 258 Mich. 618, 242 N.W. 787. (5) The court erred in permitting counsel for the State to cross-examine defendant's witness Bob Storey as to his attitude toward murder cases, the attention he paid to them and what he thought about them, in an attempt to prejudice the jury against this important defense witness, but not directed to bringing out any fact that would legitimately discredit him. Such cross-examination and the argument of State's counsel on this testimony was an outrageous case of unfair tactics and browbeating of a witness. 40 Cyc. 2488; 50 Century Digest, Witnesses, Sec. 330; Ephland v. Mo. Pacific, 57 Mo. App. 162; Wills v. Sullivan, 242 S.W. 182; Chenoweth v. Sutherland, 141 Mo. App. 276; State v. Long, 201 Mo. 674; State v. Prendible, 165 Mo. 354; Newman v. Commonwealth, 88 S.W. 1089; Nelson v. Stephenson, 102 N.W. 372; Underhill, Criminal Evidence (3 Ed.), sec. 386; Wharton's Crim. Evidence, p. 987, sec. 475; Wigmore on Evidence (2 Ed.), sec. 982. (6) The court erred in giving State's Instruction 4. It directed a conviction of defendant whether he was at the perpetration of the crime or not. State v. Williams, 274 S.W. 434.

Roy McKittrick, Attorney-General, and Powell B. McHaney, Assistant Attorney-General, for respondent.

(1) An appellate court will consider all errors contained in the motion for new trial, except those relied upon in appellant's brief and assignments of error, as having been abandoned. State v. McCann, 47 S.W. (2d) 95; State v. Godos, 39 S.W. (2d) 784. (2) In order for an error made during the trial of a cause to constitute reversible error, such error must have been prejudicial to the appellant and materially affecting the merits of the action. State v. Stuart, 316 Mo. 150; State v. Jackson, 253 S.W. 734; State v. Nasello, 30 S.W. (2d) 140; State v. Poole, 14 S.W. (2d) 440; State v. Hayes, 247 S.W. 165; State v. Dougherty, 228 S.W. 786, 287 Mo. 82; Sec. 1062, R.S. 1929. (3) The admission of evidence, even though admitted erroneously, that is merely cumulative and trivial having no bearing upon the verdict of the jury does not constitute reversible error. State v. Jackson, 253 S.W. 734; State v. Nasello, 30 S.W. (2d) 140; State v. Poole, 14 S.W. (2d) 440; State v. Hayes, 247 S.W. 165; State v. Dougherty, 228 S.W. 786, 287 Mo. 82; State v. Peters, 242 S.W. 894. (4) In order for the erroneous admission of evidence during the trial of a cause to constitute reversible error an objection must have been made thereto which directs the court to the specific ground of alleged error. State v. McGuire, 39 S.W. (2d) 526; State v. Horton, 153 S.W. 1051, 247 Mo. 657; State v. Todd, 225 S.W. 909. The alleged error in appellant's brief pertaining to the articles seized from the home of Wright was not objected to at the trial on the grounds here assigned. (5) The only objection at the trial made by the appellant to the introduction of the articles seized from the home of Wright into evidence in this cause was upon the ground that they were secured under an illegal search warrant. The illegality of a search warrant cannot be urged by any one other than the person whose property was illegally searched. State v. Finley, 275 S.W. 36, 309 Mo. 529; State v. Pigg, 278 S.W. 1030, 312 Mo. 212; State v. Morris, 279 S.W. 143. (6) When it is shown that one of a group of criminals committing a crime used a black mask and a pistol during the course of the crime and that a similar mask and a similar pistol were later found in his home, such evidence is admissible against the objection that there was no evidence connecting the articles with the crime. State v. Mangercino, 30 S.W. (2d) 763. (7) In view of Instruction G given at the request of the appellant, no error can be predicated now by the appellant upon the admission of the articles obtained from the home of the joint conspirator, Wright, for the reason given that such evidence did not tend to prove appellant's participation in the conspiracy. State v. Rumfelt, 128 S.W. 737, 228 Mo. 443; State v. Holmes, 289 S.W. 904, 316 Mo. 122. (8) Since the articles taken from the home of the co-conspirator in this case were admissible in order to prove the means and method used in the commission of the crime (State v. Mangercino, supra), that such evidence was subject to an objection that it did not tend to prove appellant's participation in the conspiracy, was immaterial. 26 R.C.L. 1033. (9) The reading of the information to the jury in this cause did not constitute error and did not constitute reversible error. State v. Gamble, 108 Mo. 500. (10) That evidence admitted without objection is not subject to a motion to strike is well settled. State v. Lehman, 75 S.W. 139, 175 Mo. 619; State v. Finn, 98 S.W. 9, 199 Mo. 597; State v. Dooms, 217 S.W. 43, 280 Mo. 84; State v. Young, 24 S.W. (2d) 1046. Hence, appellant's assignment of error as to the cross-examination of appellant's witness, Story, must fail. (11) Instruction 4 given by the court...