State v. Sprout, 49331

• Decision Date: 11 March 1963
• Docket Number: No. 49331,No. 2,49331,2
• Citation: 365 S.W.2d 572
• Parties: STATE of Missouri, Respondent, v. Lelan D. SPROUT, Appellant
• Court: Missouri Supreme Court

Page 572

365 S.W.2d 572

STATE of Missouri, Respondent, v. Lelan D. SPROUT, Appellant.

No. 49331.

Supreme Court of Missouri, Division No. 2.

March 11, 1963.

Abe Goldman, S. S. Kalender, St. Joseph, for appellant.

Thomas F. Eagleton, Atty. Gen., Allen J. Roth, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

BOHLING, Commissioner.

Lelan D. Sprout appeals from a judgment imposing a sentence of fifteen years' imprisonment for the murder in the second degree of Cledo Olvera. No brief has been filed here on behalf of the defendant. Many issues are raised or attempted to be raised in defendant's motion for new trial. They relate to the evidence, the instructions and other alleged trial errors, and insofar as essential to a disposition of this appeal will be considered.

Several assignments question the submissibility of the State's case. In ruling this issue the probative evidence favorable to the State is taken as true, as are all reasonable inferences to be deduced therefrom, and all evidence and inferences contrary thereto are disregarded. State v. Truster, Mo., 334 S.W.2d 104, 107; State v. Harris, 324 Mo. 223, 22 S.W.2d 802[1-3]; State v. Concelia, 250 Mo. 411, 157 S.W. 778[1, 4]. We omit some supporting and corroborative facts from our statement.

Olive Walker picked up Oliver Brewer about 9:00 a. m. Sunday, July 17, 1960, and proceeded to 219 Clayton Street, St. Joseph, Buchanan County, Missouri, where defendant, 59 years old, lived and Cledo Olvera, described by one witness as nothing more than a boy, stayed. Defendant and Olvera got in Walker's car. He drove down the Atchison Highway about 3 1/2 miles and stopped. Here all but Walker drank some wine, defendant having purchased two 'fifth' bottles. Returning to 219 Clayton, all four entered the house, opened the second bottle and had a drink, defendant 'a good, big drink,' Walker and Brewer departed between 10:00 and 11:00 a. m. Defendant and Olvera had been drinking but were not arguing or fussing at that time.

That afternoon defendant and Leroy Cooper were sitting on Nate Coleman's stairsteps at 323 West Missouri Avenue. Coleman came down and noticed splotches of blood on defendant's head and face, one up in his eyebrows. He asked defendant how that blood got on him and defendant said he had fallen down. Defendant was not drunk. Defendant had asked Leroy to his house for some wine, saying he had company. Coleman took them to 219 Clayton at Leroy's request. Leroy testified that as soon as he and defendant got in the house, about 3:00 or 3:30 p. m., defendant started 'pulling off' his pants and shirt, which had 'spots' (a term used in lieu of blood upon objection by defendant) on them; that defendant also had 'spots' on his face and forehead, a large one above his right eyebrow. Leroy took a drink, looked in the back for Olvera and Walker, did not see them, then looked in the other room, saw the dead man on the bed, ran out of the house and had the lady next door call the police.

The police arrived at 219 Clayton about 3:15 p. m. The house has four rooms. Two front rooms, each with a door, face south. Things in the house were thrown around, particularly in the front rooms. Olvera's body was on its back on a bed in the east front room. The head had been severely beaten with some blunt instrument and the throat had been cut from ear to ear after death occurred. The face had been caved in by the blows. Blood was over everything. There were large and small 'splattered spots' where blood had struck the furniture and wall near the bed, with some spots six or seven feet above the floor. Dr. S. E. Meluney, the Coroner, placed the time of death at 1:30 p. m.

Defendant was described as acting 'very sorrowful' one minute and the next minute as talking about something else and acting as though nothing had happened. At 3:25 p. m. he would not tell them when Olvera's death occurred. Chief of Detectives Vern B. Starmer took charge when he arrived. Defendant was questioned for about onehalf hour the afternoon of the 17th, and a search was made for the murder weapon.

Chief Starmer pulled a pair of trousers (marked plaintiff's Exhibit A) out from between two mattresses on the bed in the west front room. According to one witness the trousers had twenty to twenty-five blood spots on them. Defendant at first denied owning the trousers but later admitted the trousers and a shirt (marked Exhibit B) he had taken off on Sunday were his, and had blood spots on them. He stated that the blood on the trousers and shirt and the spots on his face and forehead were from a fall he had on July 11th in which he sustained a cut on one of his eyes. A knife was taken out of the trousers in Chief Starmer's office on the 17th.

Olvera's body was taken to the Rupp Funeral Home. Defendant was taken to jail about 4:30 p. m., and the officers left the premises about 4:30 or 4:45 p. m. July 17, 1960.

Leroy Cooper testified that on Thursday, three days before Olvera's death, defendant told Olvera 'I am going to kill you,' saying Olvera was 'greedy,' was drinking the wine too fast.

John Rupp, of the Rupp Funeral Home, took a sample of Cledo Olvera's blood and placed it in a vial, plaintiff's Exhibit U. Dr. Marvin W. Morse, with defendant's consent, took a sample of blood from defendant's arm vein and placed it in a test tube, plaintiff's Exhibit S-2. He also removed brownish fragments from defendant's forehead and placed them in a test tube, plaintiff's Exhibit S-1.

Lieutenant James Rhodes of the Missouri State Highway Patrol and in charge of its technical laboratory testified that plaintiff's Exhibits S-2 and U each contained samples of human blood and that Olvera's blood, Exhibit U, belonged to type 'O' group while defendant's blood, Exhibit S-2, belonged to type 'B' group. The fragments in Exhibit S-1 were sufficient to determine the blood involved was human blood but were insufficient to determine the blood type. He examined and tested spots on defendant's trousers and shirt, plaintiff's Exhibits A and B, respectively, and testified said spots, in each instance, were of type 'O' human blood.

Detective Tillman Nelson went back to search 219 Clayton for the murder weapon on Monday, July 18. He found the front and back doors shut, the back door being locked from the inside. He took the shirt, plaintiff's Exhibit B, from a chair in defendant's west front room and turned it over to Chief Starmer at the police station.

The jury could find from the evidence favorable to the State that decedent's blood was not only on the furniture and wall near the bed on which the body lay but also upon defendant's clothing, for instance, his trousers, and it is not within our province to interfere with findings supported by substantial evidence. State v. Dickson, 78 Mo. 438, 444(I); Harris and Concelia cases, supra.

Defendant complains of the admission in evidence of his trousers (Exhibit A) and shirt (Exhibit B).

The trousers were seized when found between two mattresses while searching the premises as an incident to defendant's arrest. Defendant's position is not well taken as the trousers were properly seized without a search warrant being necessary. State v. Brookshire, Mo., 353 S.W.2d 681[7-9]; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743[2, 3]; State v. Hands, Mo., 260 S.W.2d 14.

The situation, however, is not the same with respect to defendant's shirt. The record shows that defendant was taken to jail about 4:30 p. m., at which time the officers departed from the premises and the investigation ceased on July 17, although one witness put the time at 7:30 p. m. The State seized the shirt on Monday, July 18, when Officer Nelson went to defendant's home, found the doors shut, but entered and took the shirt from a chair in the front room. The State treats the issue as respects both exhibits as being the same factually as well as legally, relying upon the same authorities. The Carenza and Brookshire cases are the nearest in point of fact; but in each of said cases the officers did not abandon but remained in the possession of the premises after defendant's arrest until the search was completed. Searches and seizures made a day after an arrest has been completed have been considered not an incident of the arrest. Lancaster v. State, 188 Miss. 374, 195 So. 320, 321; Walker v. State, 89 Okl.Cr. 66, 205 P.2d 335, 338. It has also been considered that an arresting officer who completes his search and transfers his prisoner from the dwelling to the jail may not return and again search the home as an incident of the arrest. Rippy v. State, 122 Tex.Cr. 101, 53 S.W.2d 619[7, 8]; State v. McClendon, 64 S.D. 320, 266 N.W. 672; 79 C.J.S. Searches and Seizures Sec. 26, p. 797, n. 23; Id., Sec. 67, p. 842, n. 86; 47 Am.Jur. 515, Sec. 19.

Defendant's shirt, Exhibit B, was obtained by an illegal search ans seizure under the above authorities and the court's refusal to suppress said evidence and the evidence based thereon constituted prejudicial error calling for a new trial.

Defendant contends his trousers should not have been received in evidence because they were not in the same condition as when seized by the officers. Lieutenant Rhodes, the State's expert witness on blood types, testified that he had cut...