The State v. Capps

• Citation: 278 S.W. 695,311 Mo. 683
• Decision Date: 22 December 1925
• Docket Number: 26641
• Parties: THE STATE v. WILLIE CAPPS, Appellant
• Court: Missouri Supreme Court

278 S.W. 695

311 Mo. 683

THE STATE v. WILLIE CAPPS, Appellant

No. 26641

Supreme Court of Missouri

December 22, 1925

Appeal from Dent Circuit Court; Hon. W. E. Barton, Judge.

Reversed and remanded.

Wm P. Elmer for appellant.

(1) The motion to suppress evidence should have been sustained. The gun was illegally obtained by the officers in violation of defendant's constitutional rights. They had no search warrant and no crime was committed in their presence and the arrest was not made in the home. It is a clear case of official oppression now so prevalent. Officers are substituting their power for the law of the land. Secs. 23 and 11, Art. 2, Constitution. (a) Besides there is no evidence of the slightest character that the gun taken from defendants was used to fire the shots at Cook and Rogers. 16 C. J. 618, Secs. 1222-1225. (b) Property possessing evidentiary value obtained by government officials by means of an illegal search are not admissible in evidence against the person affected whose premises were searched. United States v. Camorto, 278 F. 388; State v. Owen, 259 S.W. 105; State v. Lock, 259 S.W. 116; Weeks v. United States, 232 U.S. 383. (c) The home owner who yields peaceably to the officers' demands is as much under restraint as if he forcibly resists such official interference with his rights. State v. Owen, and State v Lock, supra. (d) The evidence as to the fitting of the foot of Williams into tracks should have been excluded and this evidence suppressed on objection of the defendants. 16 C. J 568, sec. 1101. (e) Defendants were under arrest, coercion and duress, and naturally did what officers commanded them. They were not informed of their right to refuse to obey the officers' commands. This violated their constitutional right, as protected by Sec. 23, Art. 2, Constitution. The act was not voluntarily done. State v. Lamb, 28 Mo. 218; State v. Newcomb, 119 S.W. 408; State v. Young, 119 Mo. 518; 16 C. J. 566, sec 1097; 16 C. J. 717, 723, secs. 1468 to 1482; State v. Ellis, 242 S.W. 955. (2) The evidence is insufficient to sustain a conviction and the demurrer to the evidence should have been sustained. Suspicion, however strong, is not sufficient to sustain a conviction. State v. Buckley, 274 S.W. 74; State v. Hollis, 284 Mo. 627, 225 S.W. 225; State v. Bowman, 243 S.W. 110; 3 Rice on Crim. Evidence, 561; State v. Goodson, 209 Mo. 321; State v. Tullo, 274 S.W. 469.

Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.

(1) The trial court properly overruled defendant's motion to suppress the evidence. The sheriff had a proper warrant for the arrest of the defendants and having legally placed them under arrest had the authority to make the search; and such search was no violation of their constitutional rights. State v. Jones, 153 Mo. 457; State v. Sharpless, 212 Mo. 176; Weeks v. United States, 232 U.S. 392; Wharton's Criminal Procedure (10 Ed.) sec. 97. This search was not conducted under an illegal search warrant for the purpose of obtaining evidence upon which to base a future charge, nor a search without any warrant, but was a proper and legal search of the parties at the time and place of a legal arrest, which has uniformly been held to be proper. State v. Lock, 302 Mo. 425; State v. Owen, 302 Mo. 348. If the defendant, as a witness in his own behalf, admits in his testimony the only fact which the State has proved (in this case that the shotgun had been recently discharged) as the result of a search of his home without a search warrant, such proof by the State is without harm to the defendant and is, therefore, not reversible error. 1 R. C. L. Supp. 476 (136 P. 982). (2) Defendant Williams voluntarily placed his foot in the track indicated when directed to do so by the sheriff. He was in no way threatened nor forced to comply with the direction of the sheriff. The admission of this testimony was not reversible error. State v. Sexton, 147 Mo. 101; State v. Jones, 153 Mo. 457; Bishop on Crim. Proc., sec. 211. Even if the court had erred in the admission of this testimony, it was patently harmless error, as the jury acquitted defendant Williams. (3) This court will not invade the province of the jury, and where there is substantial evidence to support the verdict, the finding of the jury will not be disturbed by the appellate courts. State v. Sharpless, 212 Mo. 207; State v. Pfeiffer, 277 Mo. 213. The defendant waived his demurrer, filed at the close of the State's evidence, by introducing testimony. State v. Lackey, 230 Mo. 707. The court properly overruled defendant's demurrer filed at the close of all of the evidence. The State had made a prima-facie case. (4) Evidence as to other crimes is generally competent to prove the specific crime if it shows motive, etc. State v. Lewis, 181 Mo. 235; State v. Bailey, 190 Mo. 280; State v. Hyde, 234 Mo. 224; State v. Lewis, 273 Mo. 530; State v. Weismann, 238 Mo. 547. (5) The movements, appearance and bearing of the accused and his behavior when charged with a crime or confronted with the consequences or with the scene or surroundings of the crime with which he is charged, are always relevant as tending to show a consciousness of guilt. State v. Daly, 210 Mo. 664; State v. Gordon, 253 Mo. 510; State v. Prunty, 276 Mo. 376.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On April 6, 1925, the Prosecuting Attorney of Dent County, Missouri, filed in the circuit court of said county a verified information, which, without caption, signature and jurat, reads as follows:

"Clyde C. Cope, prosecuting attorney within and for the County of Dent and State of Missouri, upon his oath of office, information and belief, informs the court that Willie Capps and Dewey Williams, on or about the 18th day of February, 1925, at and in the County of Dent, and State of Missouri, in and upon one Eli Cook, with deadly weapons, to-wit, firearms loaded with gunpowder and metallic balls, feloniously, willfully, on purpose, and of their malice aforethought did make an assault, with the felonious intent then and there the said Eli Cook feloniously, willfully, on purpose and of their malice aforethought to kill and murder, and the said Willie Capps and Dewey Williams with said deadly weapons, to-wit, firearms loaded with gunpowder and metallic balls, then and there, feloniously, willfully, on purpose and of their malice aforethought did shoot at, against and into the said Eli Cook, then and there inflicting in and upon the leg of said Eli Cook with the firearms and metallic balls aforesaid certain wounds, with the felonious intent then and there the said Eli Cook feloniously, willfully, on purpose and of their malice aforethought to kill and murder, against the peace and dignity of the State."

Defendant was arraigned, and entered a plea of not guilty. On the same day he filed a motion to suppress certain evidence, which was overruled and, if necessary, will be considered later. The case was tried before a jury and on April 9, 1925, the following verdicts were returned:

"We, the jury, find the defendant, Willie Capps, guilty of assault with intent to kill, with malice aforethought, as charged in the information, and assess his punishment at imprisonment in the State Penitentiary for a term of five years.

"J. W. Stephens, Foreman."

And

"We, the jury, find the defendant, Dewey Williams, not guilty.

"J. W. Stephens, Foreman."

Defendant Capps, in due time, filed a motion for a new trial, which was overruled. Thereafter, having been granted allocution, judgment was rendered against appellant on April 11, 1925, sentence pronounced in conformity with said verdict, and an appeal was granted him to this court.

We have carefully read the argumentative statement in appellant's brief covering twenty-four pages, which will be considered as a part of appellant's brief in passing upon the merits of the case.

Rule 15 of this court, among other things, provides that: "The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto: (1) a fair and concise statement of the facts of the case without reiteration, statements of law, or argument;" etc. (Italics ours.)

Upon examination of the record, we find that counsel for respondent have made a fair, full and substantial statement of the facts, which we hereby adopt, as follows:

F. M Capps, his wife, and his son, Willie Capps, appellant herein, for about eight years prior to the time of this trial, had lived in the same house in the vicinity of the village of Montoc (or Montauk), Dent County, Missouri. Dewey Williams, a son-in-law and one of the defendants herein, and his wife and child had lived with them only about a month just preceding the alleged crime. The house of Eli Cook, prosecuting witness herein, was about one-half mile southeast from the Capps home. Mr. Cook had been living in this latter house about fourteen months at the time of the assault. This neighborhood lies in the Current River valley, a rough country of deep ravines and heavily wooded hills, interspersed here and there with small clearings or fields. On or about December 24, 1924, a mule belonging to Eli Cook had been shot, and a complaint had been filed before a justice of the peace, charging Willie Capps with the shooting. A warrant was issued on this complaint, but was still unserved at the time of the commission of the crime herein. The facts concerning the complaint by Cook and the issuance of the warrant were conveyed to Willie Capps and in response to that information he uttered much bad language and some threats against both Eli Cook and one Less Rogers. This condition of affairs existed at the time of the commission of the offense. About nine...