State v. Wilkerson

• Decision Date: 13 March 1942
• Docket Number: 37752
• Citation: 159 S.W.2d 794,349 Mo. 205
• Parties: The State v. George Wilkerson, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 794

349 Mo. 205

The State v. George Wilkerson, Appellant

No. 37752

Supreme Court of Missouri

March 13, 1942

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

Sam M Wear and W. L. Vandeventer for appellant.

(1) The court erred in permitting witnesses Ruel N. Wommack, George W. McNally and O. L. Viets to testify as to the condition of the car and the numbers on the motor thereof, for the reason that said information was obtained under an illegal search warrant and the court had so held, had quashed the search warrant and suppressed the evidence procured thereby. When property is seized under an illegal search warrant, the property actually seized, and any information procured by virtue of the seizure is not admissible in evidence against the defendant. It must not be at all. Amend. 4, U.S Constitution; Sec. 11, Art. 2, Constitution of Mo.; State v. Owens, 302 Mo. 348, 259 S.W. 100; 32 A. L. R. 383; State v. Lock, 302 Mo. 400, 259 S.W. 116; Nathanson v. United States, 54 S.Ct. 11, 290 U.S. 41; State v. Smith, 262 S.W. 65; State v. Shellman, 267 S.W. 941; State v. Price, 274 S.W. 300; State v. Hall, 265 S.W. 843; State v. Miller, 266 S.W. 1024; Simmons v. United States, 18 F.2d 85; Wagner v. United States, 8 F.2d 581; Silverthorne Lumber Co. v. United States, 40 S.Ct. 182, 251 U.S. 385; Nardone v. United States, 60 S.Ct. 266, 308 U.S. 338; United States v. Vleck, 17 F.Supp. 111; Rogers v. United States, 97 F.2d 691; National Labor Relations Board v. Prettyman, 117 F.2d 786. (2) The court erred in permitting the State to introduce Exhibit "D," which was the certificate of title of the motor vehicle seized under the illegal search warrant. Said certificate was found in the pocket of the car at the time of said seizure. Property seized under an illegal search warrant, or any evidence relating thereto, is not admissible against the defendant. The wife could not waive the defendant's constitutional rights. See authorities under Point (2); State v. Owens, 259 S.W. 100; Conner v. State, 167 N.E. 545; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261; Rose v. State, 36 Okla. Crim. 333, 254 P. 509; Carignono v. State, 238 P. 507; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Duncan v. Commonwealth, 198 Ky. 841, 250 S.W. 101.

Roy McKittrick, Attorney General, and W. O. Jackson, Assistant Attorney General, for respondent.

(1) No error was committed by the court in permitting witness Womack to testify concerning the altered motor numbers on the alleged stolen car. Kentucky Motor Car Co. v. Darenkamp, 172 S.W. 524; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061. (2) No error was committed by the court in permitting the introduction of State's Exhibit D. State v. Lock, 259 S.W. 116; Cofer v. United States, 37 F.2d 677; Cornelius on Search and Seizure (2 Ed.), sec. 23, p. 69; State v. Owens, 259 S.W. 100; State v. Pomeroy, 130 Mo. 489. (3) The court committed no error in permitting witness McNally to testify concerning the alterations in the motor number and the introduction of State's Exhibit E in connection with testimony of witness McNally. (4) The court committed no error in permitting witness Veits to testify concerning his examination of State's Exhibit D and the result of his examination of the figures on the car in question. (5) The court committed no error in permitting the wife of appellant to be cross-examined about State Exhibit D. State v. Austin, 29 S.W.2d 686.

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

OPINION

PER CURIAM

George Wilkerson was convicted and sentenced to six years' imprisonment for knowingly receiving a stolen automobile.

The only question involved in his appeal is whether or not his constitutional security against unreasonable search and seizure (Const. Mo., Art. 2, Sec. 11) was violated by the admission of certain evidence during his trial. Consequently, only such facts are set forth as bear on this problem, suffice it to say that aside from the testimony and invasion complained of the evidence was sufficient to warrant and sustain the jury's finding of his guilt.

In July, 1940, Nora Anglum's 1938 Chevrolet automobile was stolen from her garage in Ash Grove. On January 16, 1941 the sheriff of Greene County, the chief of detectives of the City of Springfield and a member of the Missouri State Highway Patrol went to Wilkerson's farm about twenty miles northeast of Springfield with a search warrant and in the absence of Wilkerson, but in the presence of his wife, searched the premises and in a closed garage about thirty-five feet from the house found an automobile which was seized, taken to Springfield and stored in Lester Williams' garage.

Before Wilkerson's trial began on March 6, 1941, he filed a motion to quash the search warrant and to suppress the evidence. After a hearing the court sustained the motion, quashed the search warrant and suppressed the evidence thus obtained. During the hearing on the motion the sheriff testified that he read the warrant to Mrs. Wilkerson and told her he understood some stolen property was there and she said, "That is all right, go ahead and search." The sheriff also testified the automobile was the only property seized under the search warrant.

The same day, as soon as the hearing on the motion to suppress was concluded, the trial of the case began. The State proved by Mrs. Anglum that her 1938 Chevrolet sedan, Motor Number 1595161, had been stolen on the night of July 9, 1940. Hugh Wagner, who worked for Wilkerson, testified, in substance, that he went to Ash Grove with Wilkerson when Mrs. Anglum's car was received by Wilkerson and driven to his farm near Fair Grove. Wilkerson's 1938 Chevrolet sedan, Motor Number 1378009, had been involved in an accident and Wilkerson, with Wagner's assistance, exchanged the bodies, putting Wilkerson's car body on Mrs. Anglum's chassis. Some of the doors and fenders on Wilkerson's car had been damaged and these parts were exchanged and the car was painted. The motor number on Mrs. Anglum's car was obliterated and Wilkerson's motor number substituted with dyes. The extra parts were sold to a salvage company in Springfield.

The second day of the trial the jury was excluded and the sheriff testified that he had had the automobile in his custody since seizing it under the search warrant and after the court sustained the motion to quash and suppressed the evidence he had returned the automobile to Mr. and Mrs. Wilkerson and then reseized it. The circumstances with reference to this were that Wilkerson was in jail, being unable to give bond, and the evening of the first day of the trial was conferring with his attorneys in a conference room in the jail when the sheriff came in, threw the keys to the car on a table and left after Wilkerson picked them up. The sheriff stated that he reseized the car because it had "tampered" motor numbers on it and had it in his custody in the Downtown Garage. Neither Wilkerson nor his wife ever had physical possession of the automobile after the original seizure.

The prosecuting attorney then stated he intended to "show the condition of this car since it was returned to the defendant" after having it examined again the night before and after the second seizure. The court overruled the defendant's objections to this line of evidence, stating, however, that it "should be limited to what has been observed and discovered since the constructive surrender of the car to Wilkerson."

The jury was called in and the State offered in evidence its Exhibit "D," which was Wilkerson's certificate of ownership showing him to be the owner of a 1938 Chevrolet automobile, Motor Number 1378009. The defendant objected to the introduction of the certificate because it had been in the glove compartment of the seized car. It was then developed that when the car was first seized at Wilkerson's farm and sheriff took the certificate from the glove compartment of the car. Mrs. Wilkerson objected to his taking it so he handed it back to her and she put it in her pocketbook. When he brought the seized automobile in to Springfield he brought Mrs. Wilkerson along and took her to the prosecuting attorney's office. It does not appear whether or not he had her under arrest, but as soon as they were seated in the prosecuting attorney's office he demanded the certificate and she handed it over to him. The court then admitted the certificate in evidence.

The sheriff gave no further evidence with reference to the automobile, but Sergeant Viets of the Missouri State Highway Patrol, who was with the sheriff when the car was seized originally, testified that the night before he had examined the automobile at the Downtown Garage, compared the motor number on Exhibit "D," Wilkerson's certificate of ownership, to the motor number on the car and they were the same. He then described in detail that the original numbers had been obliterated, but upon examining the block under heat the original numbers appeared and were the same as the numbers on Mrs. Anglum's certificate of ownership.

Following Sergeant Viets, George McNally of Kansas City testified for the State that he was a special agent for the Automobile Protective and Information Bureau and the night before had examined an automobile in the Downtown Garage bearing the motor number shown on Exhibit "D" (Wilkerson's certificate of ownership). He qualified as an expert with over twenty years' experience in such matters and described fully various marks on the motor indicating the original motor numbers had been filed off and different numbers (Wilkerson's) stamped on the block. He described the process by which the original numbers (Mrs. Anglum's) were made to appear when heat was applied. He made enlarged...