State v. Tull

• Citation: 62 S.W.2d 389,333 Mo. 152
• Decision Date: 24 June 1933
• Docket Number: 32708
• Parties: The State v. J. W. Tull, Appellant
• Court: United States State Supreme Court of Missouri

62 S.W.2d 389

333 Mo. 152

The State v. J. W. Tull, Appellant

No. 32708

Supreme Court of Missouri

June 24, 1933

Appeal from Dunklin Circuit Court; Hon. John A. McAnally Judge.

Affirmed.

McKay & Peal and Walker & Billings for appellant.

(1) The filing of a sworn complaint is the first step in the institution of a criminal prosecution for felony. Sec. 3467 R. S. 1929; Monson v. Rouse, 86 Mo.App. 101; Ex parte Saxbury, 323 Mo. 199, 18 S.W.2d 1042; State v Nichols, 49 S.W.2d 19; 16 C. J. sec. 495, p. 288; Sec. 11, Art. II, State Const.; State v. Privitt, 39 S.W.2d 757. (a) The filing of an unsworn complaint neither states nor contains the requisite finding of probable cause upon which to find that the allegations are true for the issuance of a warrant for the person, or the basis for a criminal prosecution for a felony. It is not the complaint "reduced to writing, supported by oath or affirmation" required by the Constitution. Sec. 11, Art. II, State Const.; Sec. 3467, R. S. 1929; State v. Privitt, 39 S.W.2d 757; State v. Nichols, 49 S.W.2d 19. (b) The affiant to a complaint must do some unequivocal act by which he takes upon himself the obligation of an oath of affirmation, to constitute a sworn complaint. Sec. 1722, R. S. 1929; 48 C. J. 885; O'Reilly v. People, 86 N.Y. 154, 40 Am. St. Rep. 525; State v. Privitt, 39 S.W.2d 757; 2 C. J. 337; State v. Bonner, 178 Mo. 432. (c) The appellant was not accorded a preliminary examination upon a sworn complaint, and the filing of an information is prohibited until the accused is held at a preliminary trial upon a sworn complaint. This information should be abated. Sec. 3503, R. S. 1929; State ex rel. McCutcheon v. Cooley, 321 Mo. 786; Ex parte Saxbury, 323 Mo. 199; State v. Nichols, 49 S.W.2d 19; State v. Privitt, 39 S.W.2d 757. (d) The justice had no jurisdiction over the cause or the person of the accused, and conferred none upon the circuit court by holding a pretended examination of the accused. Jurisdiction in a felony case is derivative. State ex rel. v. Cooley, 321 Mo. 786; Ex parte Saxbury, 323 Mo. 199; State v. Nichols, 49 S.W.2d 19; State v. Privitt, 39 S.W.2d 757; State ex rel. Harris v. Galloway, 21 S.W.2d 229. (e) Neither the invalidity of the alleged affidavit, nor the preliminary examination were waived, and the appellant challenged the legality of the proceeding at every step in the prosecution by his plea in abatement filed before Justice Foster, refiled before Justice Royer and again filed anew in circuit court. State v. Nichols, 49 S.W.2d 19. (2) The invasion of the premises by the officers without a search warrant and the search warrant rewarded thereby by finding the cultivator behind his barn constitutes an unreasonable, illegal and unlawful search of his premises and violates the constitutional and legal rights of the appellant. Sec. 11, Art. II, Const. of Mo. The accused did not waive the illegal search of his premises. State v. Privitt, 39 S.W.2d 758. The appellant was illegally and prejudicially required to answer that he had never complained to any officer of buying this cultivator from Dinkins, which was beyond the scope of his examination in chief. Sec. 23, Art. II, State Const.; Sec. 3692, R. S. 1929; State v. Mathis, 18 S.W.2d 8. (3) The trial court committed error in failing and refusing to reprimand the prosecutor for declaring in his closing argument to the jury that the defendant is "Thrice guilty. An officer of the law going and committing a felony in a sister county just because he has it in his blood and wants to steal something." State v. Snow, 252 S.W. 632; State v. Phillips, 233 Mo. 299; State v. Volz, 269 Mo. 194.

Stratton Shartel, Attorney-General, and Julius Meyerhardt, Assistant Attorney-General, for respondent.

(1) The search and seizure wherein the stolen cultivator was found in the barnyard lot beside the barn was not in violation of the Constitution and was not unreasonable. State v. Zugras, 267 S.W. 804; State v. Cobb, 273 S.W. 739. Moreover, defendant Tull by telling the officers they could proceed without a search warrant waived the necessity thereof. State v. Bliss, 18 S.W.2d 509; State v. Lee, 11 S.W.2d 1044. The issue of fact as to whether voluntary consent to search was given was for the trial judge. He evidently found the search and seizure was made with the voluntary consent of appellant and therefore there was no unlawful search. State v. Lee, supra. Where a felony has been committed a sheriff, constable or other officer has the right without a warrant to arrest a person upon information or reasonable grounds to believe that the person arrested has perpetrated the crime. State v. Gartland, 263 S.W. 165, 304 Mo. 87; State v. Hall, 279 S.W. 102, 312 Mo. 425; State v. Howard, 23 S.W.2d 11, 324 Mo. 145; State v. Underwood, 75 Mo. 237; State v. Bailey, 8 S.W.2d 57. (2) Giving falsus in uno, falsus in omnibus instruction in the absence of evident prejudice, to the defendant is largely in the discretion of the court. State v. Barnes, 204 S.W. 267, 274 Mo. 625; State v. Gonder, 289 S.W. 645; State v. Tighe, 289 S.W. 829; State v. Caviness, 33 S.W.2d 940, 326 Mo. 992. (3) There was no prejudicial error in defendant's cross-examination. The utmost that can be said in regard to the cross-examination complained of was that it had reference to matters which had merely been referred to by defendant in his examination in chief, which was not improper. In cross-examination the State is not limited to the very letter of the examination in chief but cross-examination is permitted to any matter referred to or within the fair purview of the direct examination. State v. Glazebrook, 242 S.W. 928; State v. Ellis, 234 S.W. 845.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

By an information filed in the Circuit Court of Dunklin County defendant and Lavert Hamlin were charged with grand larceny, the information alleging the theft of a cultivator of the value of $ 35. A severance was granted and defendant Tull was tried alone, resulting in his conviction and sentence to two years' imprisonment in the penitentiary.

According to the State's evidence the cultivator was left in the evening of April 13, 1931, in a lane that led to and connected with a graveled highway, from whence it was stolen that night. The person who moved it pulled it by hand to a point on the highway where it had apparently been attached to an automobile. On the highway some two miles from that point and near an uninhabited house it had been taken apart. Between nine and ten o'clock that night it and an automobile were observed in the highway near said house. The license number of the car was taken by a witness who observed it there and the ownership of the car was traced to this defendant who lived in Pemiscot County. The Sheriff of Dunklin County with other officers went to a farm owned by defendant but occupied by his tenants where the cultivator was found and identified. It had been reassembled. Defendant was there. He admitted ownership of the automobile seen the night before at the place above mentioned and that he had been in Dunklin County that night and had procured the cultivator there. He claimed he had bought it from a man unknown to him for $ 15. The State's evidence showed the value of the cultivator to be in excess of $ 30.

Defendant testified at the trial, as did his companion Hamlin whom he called as a witness. According to their testimony defendant, who was a deputy constable, had been looking for a man whom he wanted to arrest. At a filling station they met and fell into conversation with a man who, defendant later learned, was Charles Dinkins and in the conversation Dinkins said he had a cultivator for sale. After some bargaining with Dinkins defendant agreed to buy it for $ 15 and later that night, after further unavailing search for the man they were seeking, defendant and Hamlin came back that way, picked up Dinkins and with him drove to a point in the highway where Dinkins told him to stop. Dinkins left the car and in a short time returned pulling the cultivator. The three men then proceeded to the vacant house where Dinkins procured a wrench and took the cultivator apart and it was loaded into defendant's car. Defendant paid him the $ 15 agreed upon and so far as the evidence shows left him at that spot. It is unnecessary to give a detailed statement of the evidence. It was sufficient to take the case to the jury.

I. Appellant's chief contention is that he was not given a valid preliminary examination prior to the filing of the information herein because, as he claims, the complaint upon which the preliminary examination was held was not sworn to. He filed a timely plea in abatement in the circuit court raising that issue, which plea the court, after hearing evidence thereon, overruled.

The facts necessary to an understanding of this contention as developed at the hearing are briefly these: A day or so after the larceny the prosecuting attorney, Mr. Ford having learned thereof and of the facts connecting defendant and Hamlin therewith, prepared in his office a written complaint charging the defendant and Hamlin with the larceny. He intended to file it with M. F. Foster, a justice of the peace before whom he designed to have the preliminary examination. He and Foster had previously conferred about the matter and Foster understood the complaint was to be filed with him. When Mr. Ford had prepared the complaint he signed it and left it lying on his desk while he went to look for Foster, whom he met coming toward his (Ford's) office. Ford told the justice he had drawn and signed the complaint and left it on his desk and desired to be sworn to it and wanted the justice to sign it and sign warrants. The justice said he would do so...