The State v. Rebasti

• Decision Date: 30 December 1924
• Docket Number: 25255
• Citation: 267 S.W. 858,306 Mo. 336
• Parties: THE STATE v. CHARLES REBASTI, Appellant
• Court: Missouri Supreme Court

267 S.W. 858

306 Mo. 336

THE STATE v. CHARLES REBASTI, Appellant

No. 25255

Supreme Court of Missouri

December 30, 1924

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Reversed and Remanded.

Clarence Wofford and Bert S. Kimbrell for appellant.

(1) The court erred in overruling the motion, filed by defendant and heard by the court before the trial, to suppress the evidence and written or printed notations of the contents of the safe deposit box of the defendant, and in admitting upon the trial of the cause evidence as to the contents of said safe-deposit box, for the reason that said safe-deposit box was entered and evidence of its contents obtained by and in consequence of a violation of the rights of the defendant under Sections 11 and 23 of Article 2 of the Constitution of Missouri and the fourth and fifth amendments of the Constitution of the United States. (a) The pretended affidavit, upon which the pretended search warrant was issued, was void, in that it did not describe or attempt to describe any article or property to be searched for or seized, did not state facts sufficient to show the commission or attempted commission of a crime and did not state facts sufficient to show the existence of probable cause, but merely stated that affiant believed and had reason to believe that a fraud had been committed or was about to be committed upon the revenue of the United States. Secs. 4115, 4129, R. S. 1919; Giles v. United States, 284 F. 208; Queck v. Hawker, 282 F 942; Woods v. United States, 279 F. 710; United States v. Ray and Schultz, 275 F. 1004; United States v. Rykouski, 267 F. 866; Veeder v. United States, 252 F. 414; Ripper v. United States, 178 F. 24; Honeycutt v. United States, 277 F. 939; White v. Wagar, 185 Ill. 195; Early v People, 117 Ill.App. 608; State v. Leach, 38 Me. 432; State v. Whalen, 85 Me. 469; Hussey v. Davis, 58 N.H. 317; State v. Spirituous Liquors, 68 N.H. 47; People v. Kinney, 185 N.Y.S. 645; Byrnside v. Burdett, 15 W.Va. 716; State v. Peterson, 13 A. L. R. 1284. (b) The paper, or pretended search warrant, under the pretended authority of which the box was entered and the evidence obtained was void, in that it did not describe or attempt to describe any article or property to be searched for or seized, did not state facts sufficient to show the commission or attempted commission of a crime and did not state facts sufficient to show the existence of probable cause, but merely stated that affiant believed and had reason to believe that a fraud had been committed or was about to be committed upon the revenue of the United States by the use of said box. Sec. 11, Art. 2, Mo. Constitution; Secs. 4116, 4130, R. S. 1919; 35 Cyc. 1267; Bishop's New Criminal Procedure (4 Ed.) pp. 146, 147; State v. Slamon, 73 Vt. 212. (c) The search warrant being void, the entrance into the box was without warrant or authority, the search was unreasonable, and therefore unconstitutional, and the court erred in receiving evidence obtained in violation of the defendant's constitutional rights, and in overruling defendant's motion to suppress. Gouled v. United States, 255 U.S. 298, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 65 L.Ed. 654; Weeks v. United States, 232 U.S. 383, L. R. A. 1915B, 834; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746; People v. Marxhausen, 204 Mich. 559; Cooley's Constitutional Limitations (7 Ed.) pp. 431, 432, 433. (2) The court erred in excluding testimony offered upon the part of the defendant to show by the records of the circuit court that the Live Stock State Bank, of which the witness for the State, Seaton, was vice-president, had sued the defendant for the sum of $ 9500, and that this suit was pending at the time of the trial of the defendant on this charge. Evidence tending to show animus, motive, interest, etc., is always competent.

Jesse W. Barrett, Attorney-General, and Allen May, Special Assistant Attorney-General, for respondent.

(1) The evidence is sufficient to make a case for the jury. State v. Affronti, 292 Mo. 53; State v. Lasson, 292 Mo. 155. (2) The court erred in overruling defendant's motion to suppress evidence and in admitting such evidence upon the trial. (a) The search warrant under which the evidence was obtained was illegal and invalid under the Federal authorities. Woods v. United States, 279 F. 706; Giles v. United States, 284 F. 208; Veeder v. United States, 252 F. 414; Ripper v. United States, 178 F. 24. (b) It was likewise void, if tested by the State law. State v. Lock, 302 Mo. 400. Evidence obtained by illegal search and seizure by Government officers with the intention of securing evidence to convict the accused, will be suppressed upon timely motion before the trial, and failure to suppress such evidence constitutes reversible error. State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, L. R. A. 1915B, 834; Gouled v. United States, 255 U.S. 298, 65 L.Ed. 647. (d) The Government may not by indirection do what it could not do directly. It cannot repudiate the illegal seizure and yet avail itself of the knowledge so obtained. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319.

White, J. Graves, C. J., James T. Blair, Ragland and Woodson, JJ., concur; Walker, J., absent; David E. Blair, J., dissents in separate opinion.

OPINION

WHITE

Appellant, in the Circuit Court of Jackson County, was found guilty of robbery in the first degree, and his punishment assessed at ten years imprisonment in the State Penitentiary. He was charged jointly with Ernest Hodges, but obtained a severance. He asserts here that a case against him was not made out, and therefore it is necessary to review the evidence.

The robbery was alleged to have been committed October 13, 1922, between eleven and twelve o'clock in the forenoon. On that morning one Thomas Crump, messenger for the Livestock State Bank, was carrying $ 9500 to his bank from the Continental National Bank in Kansas City. About 11:35 A. M. he boarded a street car at 12th and Main streets, and took a seat near the rear end of the car. Suddenly he was hit on the head and a gun placed at his stomach by a man who took the money out of his pockets and backed to the front door of the car and, with another man, got off at the front end of the car. The two men ran to an automobile which was about one hundred and fifty feet from the street car, and escaped.

On October 21, 1922, the defendant was arrested, taken to the police station and searched. The key to a safe-deposit box in the New England Safe Deposit Vaults Company, and a receipt for rent of same, were found on his person. Crump identified the defendant at the jail after the latter's arrest, but later was not very positive of his identification. Four other witnesses of the robbery also identified the defendant as one of those who perpetrated it. Lloyd Brashear, a window washer, was on the car. He testified he had a good view of Crump and of the man who robbed him. He identified the defendant and the other robber after their arrest. Eugene V. Connant was on the street at the time and saw the two men running from the street car, a distance of thirty or forty feet; he later saw both in the county jail and identified them; the defendant was one of them. Griffith H. Connell, conductor of the street car on which the robbery occurred, testified that he was standing within a few feet of Crump at the time. He distinctly saw the man who took the money, and in the court room positively identified the appellant as the robber. One W. C. Hoffman was on the street car at the time of the robbery. He saw the robber take the money away from the messenger; he also identified Rebasti in the court room, as the robber.

The Assistant Federal Reserve agent at Kansas City testified to the printing and engraving and the sending out of Federal Reserve notes; he testified that on the sixth of October, seven days before the robbery, he delivered to the Federal Reserve Bank of Kansas City, two hundred five-dollar notes, giving the numbers. The paying teller of the Federal Reserve Bank testified that on the morning of the 13th he delivered to the messenger of the Continental National Bank a quantity of money, including $ 12,000 in five-dollar bills.

William R. Ricketts, manager of the New England Safe Deposit Vaults Company, testified that Charles Rebasti rented Deposit Box No. 1832, in his institution. Rickett was present afterwards when by virtue of a search warrant the box was opened.

Guy O. Seaton, vice-president of the Livestock State Bank, where Crump was employed as messenger, testified that he was in the New England Safe Deposit Vault when Charles Rebasti's box was opened, and among other things it included one hundred and ninety-seven five-dollar bills, bearing numbers included in the five-dollar bills mentioned by the Assistant Federal Reserve agent as having been delivered by the Federal Reserve agent on the sixth at the Federal Reserve Bank.

All this evidence relating to the contents of the safe-deposit box and the renting of it, was objected to and exceptions saved.

Before the trial defendant filed a motion to suppress the evidence alleging that when arrested he was carrying a key to a safe deposit box, and that a receipt for the rental of the box was taken from his person, in violation of his rights under Sections 11 and 23, Article II, of the Constitution of Missouri, and in violation of the defendant's rights under the Fourth and Fifth amendments to the Constitution of the United States. That afterwards his safe-deposit box was broken into without warrant or authority of law, in violation of the said sections of the Constitution of Missouri and of the United States, and certain...