State v. Smith

• Decision Date: 08 March 1948
• Docket Number: 40688
• Citation: 209 S.W.2d 138,357 Mo. 467
• Parties: State v. William Emmett Smith, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 138

357 Mo. 467

State v. William Emmett Smith, Appellant

No. 40688

Supreme Court of Missouri

March 8, 1948

Appeal from Hickory Circuit Court; Hon. C. H. Jackson Judge.

Reversed and remanded.

W W. Sunderwirth, S. E. Osborn and Lee Crook for appellant.

(1) The verdict of the jury is against the law and against the instructions as given by the court. State v Nicholas, 222 Mo. 425; State v. Brinkley, 146 Mo. 37; State v. Barbour, 151 S.W.2d 1105; State v. Hamlin, 171 S.W.2d 716. (2) The court prejudicially erred in overruling defendant's demurrer at the close of the state's evidence, and at the close of all evidence. State v. Murphy, 210 Mo. 280; State v. Duncan, 50 S.W.2d 1021; State v. Hamlin, 171 S.W.2d 716. (3) Because the court erred in overruling defendant's motion to suppress evidence filed April 15, 1946, obtained by unlawful seizure and search. State v. Locke, 259 S.W. 116; State v. Owens, 259 S.W. 100; State v. Morice, 267 Mo. 415; State v. McBrice, 37 S.W.2d 483; State v. Morice, 79 S.W.2d 741; Secs. 4346, 8360, 8362, R.S. 1939; Secs. 2, 23, Art. II, Mo. Constitution. (4) Court erred in allowing the state to exhibit before the jury a ball hammer, pinch bar, two license plates, two screw drivers, two pair of shoes, and other articles taken from the person and automobile of defendant and not charged to have been taken from the school house in Preston, Missouri. State v. Richards, 67 S.W.2d 61. (5) The court erred in allowing the state to exhibit the two license plates taken from defendant's automobile, the last number on one of which would prejudice the jury against defendant. State v. Wilkerson, 159 S.W.2d 796. (6) The court erred in permitting the state to exhibit before the jury the pistols found on or in the possession of persons other than the defendant. State v. Richards, 67 S.W.2d 61. (7) The court erred in giving Instruction 4 which permitted the jury to find the defendant guilty of burglary and larceny or guilt of either, and for the further reason the jury found defendant guilty of larceny and acquitted him of burglary, but did not give the value of the goods taken or say in their verdict whether they found him guilty of grand or petit larceny. State v. Nicholas, 222 Mo. 425; State v. Brinkley, 146 Mo. 37; State v. Barbour, 151 S.W.2d 1105; State v. Hamlin, 171 S.W.2d 716. (8) The court erred in allowing the prosecuting attorney to file an amended information against William Emmett Smith when defendant's name is Emmett Smith, and he was so named in the complaint and the original information, and gave bond in the name of Emmett Smith for the reason a conviction in this case would not be a bar in another information against Emmett Smith for the same offense. State v. Richards, 67 S.W.2d 58. (9) The court erred in allowing the prosecuting attorney in the arraignment of defendant to read the information and the verification thereof in the presence of the jury, especially the verification. State v. Null, 199 S.W.2d 642.

J. E. Taylor, Attorney General, and Robert R. Welborn, Assistant Attorney General, for respondent.

(1) The court did not err in overruling appellant's demurrer at the close of the state's case and at the close of all of the evidence. State v. Clark, 353 Mo. 470, 182 S.W.2d 619; State v. Peters, 123 S.W.2d 34; State v. Oliver, 355 Mo. 173, 195 S.W.2d 484; State v. Denison, 352 Mo. 572, 178 S.W.2d 499; State v. Hannon. 204 S.W.2d 915. (2) The court did not err in overruling appellant's motion to suppress evidence alleged to have been obtained by unlawful search and seizure. Secs. 8358(a), 8359, 8383, 8404(d), R.S. 1939; State v. Padgett, 316 Mo. 179, 289 S.W. 954; State v. Hadlock, 316 Mo. 1, 289 S.W. 945; State v. Raines, 339 Mo. 884, 98 S.W.2d 580. Secs. 11, 23, Art. II, Mo. Constitution of 1875. (3) The court did not err in allowing the state to exhibit before the jury a pinch bar, ball hammer, two license plates, two screw drivers, two pair of shoes, and other articles taken from the person and automobile of appellant. State v. Dubois, 49 Mo. 573; State v. Davis, 80 Mo. 53. (4) The court did not err in allowing the state to exhibit a 1942 license plate alleged to have been taken from appellant's automobile. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. (5) The court did not err in permitting the state to exhibit before the jury pistols found on a person other than the accused. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. (6) The court did not err in allowing the Prosecuting Attorney to file an amended information against William Emmett Smith. Sec. 3950, R.S. 1939; State v. Linton, 283 Mo. 1, 222 S.W. 847; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525. (7) The court did not err in allowing the Prosecuting Attorney, on the arraignment of the defendant, to read the information and the verification thereof. State v. Painter, 329 Mo. 314, 44 S.W.2d 79.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

In July 1945 someone entered the Preston school, by prying a window open, and stole seven typewriters. The appellant, William Emmett Smith, was charged with the burglary and the larceny. He was acquitted of burglarizing the building but was convicted of stealing the typewriters and sentenced to two years' imprisonment. Upon this appeal consideration will be given to such of his assignments of error as were properly preserved for review and may now or hereafter bear meritoriously upon the cause.

On the 31st day of July 1945 the appellant and his wife were driving from El Dorado Springs to Kansas City in a 1940 Chevrolet automobile. As they approached Harrisonville in Cass County on Highway 71 a State Highway Patrol car signalled them to stop and one of the patrolmen ordered them to get out of the car with their hands up. As they obeyed the command Mrs. Smith's purse fell to the ground and one of the patrolmen picked it up. The purse felt exceptionally heavy and the patrolman opened it and found two loaded revolvers, a 32 automatic and an "owl head." The patrolmen then unlocked and opened a back door of the car. On the floor of the car, concealed under a blanket, they discovered seven typewriters. When asked what he was doing with the typewriters the appellant stated that he was a typewriter mechanic. One of the officers unlocked and opened the luggage compartment and there found their personal belongings and some tools. Upon discovering these articles the patrolmen took the appellant, his wife and the car to patrol headquarters at Lee's Summit in Jackson County where they were questioned at length concerning the typewriters. The appellant was unable to say where he worked as a typewriter mechanic and finally claimed that he had purchased the typewriters from a man in El Dorado Springs. While they were being questioned the patrolmen made a further and thorough search of the car and its contents. In their baggage they found another pistol. Underneath the seat there was a pinch bar. Elsewhere in the car there were several screw drivers, a spatula, a ball hammer, a pair of soft-soled shoes with blank soles and among the appellant's effects a large number of miscellaneous keys. About eleven o'clock that night the patrolmen lodged Smith and his wife in the Kansas City jail. During the night, after the appellant and his wife had been lodged in the Kansas City jail, the patrolmen learned, from their Springfield office, of the burglary of the Preston school and the theft of the seven typewriters. The following morning Smith and his wife were returned to patrol headquarters and sometime during the day the sheriff of Hickory County appeared with a warrant and arrested them. The typewriters found in the car belonged to the school district and the pinch bar fitted precisely the indentations of the pried window.

The appellant filed a motion to suppress evidence in which he set forth the circumstances of his detention, the search of the car and the seizure of its contents and alleged that the search and seizure were specifically prohibited by the State Highway Patrol Act (Mo. R.S.A., Sec. 8362) and violated the constitutional prohibition against unreasonable searches and seizures. Const. Mo., Art. I, Sec. 15. It is not necessary in the disposition of this appeal to detail the circumstances and demonstrate that the search and seizure were unlawful and violative of the appellant's constitutional rights. It is sufficient for the purposes of this opinion to say that the search and seizure were unlawful and that the trial court should have sustained the motion to suppress (State v. Owens, 302 Mo. 348, 259 S.W. 100; State v. Morice, (Mo.) 79 S.W.2d 741) but it does not follow in the circumstances of this record that the appellant is entitled to be discharged or have the cause remanded for that reason.

The personal right against unreasonable searches and seizures secured by the constitution, like the right against self-incrimination and of confrontation may be waived or so used or employed that one may lose the right to insist upon their strict enforcement or to complain of their infringement. State v. Graves, 352 Mo. 1102, 1114, 182 S.W.2d 46, 54; Motes v. U.S., 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150. Upon the trial of this cause the appellant so conducted himself and his defense that he is in no position to complain of the invasion of his constitutional rights. In voluntarily testifying (Mo. R.S.A., Sec. 4081) he denied that he had burglarized the school building or that he had stolen the typewriters. He denied that he had ever stopped in Preston. He admitted possession of the seven typewriters but testified that he purchased them from Crawford Bennett in El Dorado Springs on the 31st day of July 1945 for $ 140.00. While he conceded that the typewriters were a bargain at...