State v. Vainikos

• Decision Date: 08 April 1963
• Docket Number: No. 49315,49315
• Citation: 366 S.W.2d 423
• Parties: STATE of Missouri, Respondent, v. Marco Demitri VAINIKOS, Appellant. . En Banc
• Court: Missouri Supreme Court

Page 423

366 S.W.2d 423

STATE of Missouri, Respondent, v. Marco Demitri VAINIKOS, Appellant.

No. 49315.

Supreme Court of Missouri. En Banc.

April 8, 1963.

Morris A. Shenker, Lawrence J. Lee, Murry L. Randall, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., James K. Pendleton, Special Asst. Atty. Gen., Jefferson City, for respondent.

WESTHUES, Chief Justice.

The defendant Marco Demitri Vainikos, on December 6, 1961, was convicted by a jury on a charge of carrying a concealed weapon. The punishment assessed was a fine of $150. A motion for new trial was overruled and a judgment entered. An appeal was taken to this court. The offense of which defendant was convicted is a felony, hence jurisdiction of the appeal is in this court.

The offense was alleged to have been committed on August 4, 1961, in the City of St. Louis, Missouri.

On this appeal, defendant has briefed three points. In the first, it is stated that the trial court erred in giving instruction No. 2. It is claimed that this 'instruction required defendant to prove that he did not intend to conceal the .25 caliber Colt pistol, instead of requiring the State to prove beyond a reasonable doubt that he did so intend to conceal it.'

In the second point, defendant says the trial court erred in admitting the .25 caliber pistol and another pistol, a .22 caliber, in evidence because they were obtained by a search without a warrant after defendant's arrest; that there was no justification or probable cause for defendant's arrest.

In the third point, defendant says that the trial court should have declared a mistrial or should have stricken evidence given by the arresting officer, Hemm, to the effect that the defendant, after his arrest, refused to make any statement. We shall dispose of the points presented after making a statement of what the evidence disclosed to have occurred.

Police officer Hemm, a witness for the State, testified that he had been informed by an F.B.I. agent that the occupant of a car parked near the corner of Pershing Avenue and Plaza Drive in St. Louis, Missouri, was carrying a gun. Thereafter, the police officer noticed the defendant enter the car and as he was about to drive away, the officer stopped him. The officer placed defendant under arrest. Upon searching the car, the officer found a .25 caliber automatic under the front seat of the car and found a .22 caliber in the glove compartment of the car. Both pistols were loaded.

Defendant testified and his evidence was much like that of the officer except that defendant stated he had placed the .25 caliber automatic on the floor of the car and had not intended to hide it. The officer testified that the .25 caliber was hidden from view. It may be noted here that defendant was charged with having concealed the .25 caliber. The evidence with reference to the .22 caliber was admitted by the trial court on the theory that such evidence had a bearing on the intent of the defendant. It may be further stated that all the elements of the offense were admitted by the defendant except that of the concealment of the .25 caliber pistol.

We shall dispose of the points made in the order stated supra. The instruction (No. 2) complained of reads as follows: 'The Court instructs the jury that to conceal a weapon means something more than carrying it or the mere fact of having it where it may not be seen. It implies an assent of the mind and a purpose to carry it so that it may not be seen; and the Court instructs you that if you find and believe from the evidence that the defendant did not intend to carry the .25 caliber pistol mentioned and described in the information herein concealed, then you should find the defendant not guilty.'

The court also gave an instruction (No. 4) which advised the jury as follows: 'The defendant is charged with carrying concealed a .25 caliber pistol, and in this respect you are instructed that you may not convict him merely because of the fact that he may have had a .22 caliber pistol in his glove compartment, and unless you find and believe from the evidence beyond a reasonable doubt that the defendant intended to conceal the .25 caliber pistol mentioned in evidence, you will acquit the defendant.'

The court further instructed the jury that to convict the defendant the burden was on the State to prove his guilt beyond a reasonable doubt. Instructions must be considered together and we need not consider at length defendant's point that the court's instruction imposed on the defendant the burden of proving that he did not intend to conceal the weapon. A reading of the above-quoted instructions answers the defendant's complaint. He certainly was not prejudiced by the court's instructions. State v. Dill, Mo., 282 S.W.2d 456, 1. c. 460, 461(4, 5).

The second point, that officer Hemm did not have probable cause to arrest the defendant, is without merit. Hemm testified in the hearing on the motion to suppress that he had known the F.B.I. agent who gave him the information for some time and that he had had dealings with him previously. He further testified that the F.B.I. agent informed him that the occupant of the car, a white Pontiac with license No. 2212, 1961, was carrying a gun. The question here presented was reviewed by this court in the case of State v. Bailey, 320 Mo. 271, 8 S.W.2d 57, l. c. 59(1, 2). The question was further reviewed by this court en banc in the case of State v. Edwards, Mo., 317 S.W.2d 441. We note here that the question of whether the trial court erred in not requiring officer Hemm to reveal the name of the F.B.I. agent is not before us. We note a ruling made by the trial court, on the hearing to suppress the evidence, that in the circumstances presented the name of the informant need not be disclosed. No point was made that the trial court abused its discretion. We rule that the trial court's ruling admitting the evidence was not error and that the officer had probable cause to arrest defendant.

We now reach a more serious question. Defendant was the only witness for the defense. His evidence, in substance, as to what occurred was similar to that of officer Hemm except that the defendant testified he had placed the .25 caliber pistol on the front floor of the car where it could be seen. He stated that he had been employed by an insurance company which required him to collect money; that on one occasion, he had been followed by two men who he thought wanted to rob him of money; that that was the reason he had the pistol in his car.

On direct examination, he was not asked about the police officer's asking him any questions at the time of his arrest. The cross-examination of the defendant was, in part, as follows:

'Q Did you tell the police that you carried this gun because you had been accosted on the street by several men?

'A No, sir.

'Q You did not tell the police officer that?

'A No, sir.

'Q Did the police officer ask you why you carried this gun?

'A No, sir.

'Q He did not? Are you sure of that?

'A Yes.

'Q Is it your testimony then that the police officer did not ask you why you carried this gun, State's Exhibit No. 1?

'A Correct.

'Q Did the police officer ask you why you carried State's Exhibit No. 2?

'A No, sir.

'Q Did you tell him why you were carrying it?

'A No, sir.'

The prosecution called officer Hemm in rebuttal. Note what occurred during the questioning by the State's attorney:

'Q Officer, after you placed Vainikos under arrest and found State's Exhibit 1, which is the pistol, did you ask him why he was carrying that?

'A Yes, sir.

'MR. KOSTER: I have no further questions.

'MR. LEE: No questions.

'MR. KOSTER: Did he give you an answer, Officer?

'A He refused to make a statement.

'(Witness excused.)

'Proceedings were had out of the hearing of the jury as follows:

'MR. LEE: In view of that last answer, your Honor, I ask that comment upon defendant's failure to incriminate himself of the offense in question be stricken out, and Mr. Koster well knew what this officer was going to say when he put him on the stand and asked the question.

'THE COURT: In a case where the defendant has testified, I don't think that this is at all a matter of any comment which the law forbids, if it is to be called a comment at all. The present objection is overruled.

'MR. LEE: He put this witness on only for the purpose of having him testify that this defendant refused to make a statement, and he knew what his answer would be before he asked the question. He did nothing but exercise his right not to make a statement.

'MR. KOSTER: I expected the officer to say 'No' when I asked the question, 'Did he make a statement as to why he was carrying a gun,' I expected the officer to say 'No.'

'THE COURT: The previous question was one that he could properly ask on rebuttal in view of the defendant's statement that the officer did not ask him why he was carrying a gun, it is proper to ask the officer in rebuttal, 'Did you ask him why he was carrying it. (') The purpose in putting him on is obviously a proper purpose. Now as to this last, I don't think it is a serious matter at all.

'MR. LEE: I certainly object, and I ask that the jury be instructed to disregard this last answer and a mistrial be declared.

'THE COURT: I will deny the motion for a mistrial. There is no legal reason given that would justify my striking anything of the last answer, so I overrule that motion to strike.'

The ruling of the court, overruling the motion to strike, was erroneous. In State v. Bowdry, 145 S.W.2d 127, 1. c. 129, 130(3-7), this court said: '* * * in Missouri the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.' A number of cases are there cited in support of the rule. See also State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, l. c. 755(4, 5, 6-8), and 22A C.J.S. Criminal Law Sec. 734(1) d, p. 1077.

In this case, the disputed issue was whether...