434 S.W.2d 567 | Mo. | 1968
Forréale C. Chiney, charged with and convicted by a jury of burglary in the second degree, § 560.04S, RSMo 1959, V.A.M. S., and sentenced to confinement at the direction of the department of corrections for 5 years, has appealed.
At 9 p.m. on October 21, 1965 Mrs. Mae Keet noticed a man standing outside the residence of Charles Bruce, her next-door neighbor. She heard the noise of glass crashing, and saw appellant at Bruce’s front door. A small glass was broken out of the door but was so high “you couldn’t get your hand down to unlock the door.” She saw appellant walk through the yard to the back door. She heard a second crash of glass. Looking from her window into the Bruce window (only 5 feet distant) she observed the man coming out of the bedrooms piling some boxes and clothes in the hall. She called the police. When they arrived they knocked on the front door. The man started running out the back door. The police pursued, caught and returned the man who, according to Mrs. Keet, “admitted breaking in.” (The court overruled a request that this be stricken and the jury instructed to disregard it as an admission “without proper foundation being laid.”) Mrs. Keet made a courtroom identification of appellant as the man she heard make the admission.
Mr. Bruce testified that he locked his door that evening and went to choir practice. Upon his return he found a small pane of glass in the front door broken. Both back doors were broken. Some of his personal things had been collected together and piled up in the front room, including suits, hats, cigarettes, a table model television and a small clock radio. The police were holding appellant in custody. Mr. Bruce knew appellant, who had been in his home several times as a social guest. On occasion Mr. Bruce had permitted appellant to enter the house to use his telephone. Appellant had once stayed all night in his house. Mr. Bruce had not given appellant a key or permission to enter his home in his absence. In answer to the question whether he spoke to appellant upon his return to his home Mr. Bruce answered in the negative, giving as his reason that the officers said “He has already confessed.” On request the court instructed the jury to disregard that statement.
The policemen testified that after being summoned by a prowler call they went to the address of Mr. Bruce. Officer Port-wood went to the front door. They heard a noise inside the house. Officer Arnold circled around to the back of the house, observed appellant run out of the back door, drew his revolver and ordered him to halt and turn around. Appellant stopped, turned and removed a black sock off each hand and dropped the socks to the ground.
The foregoing evidence is sufficient to sustain the conviction of burglary second degree.
Appellant’s first two points are related and may be treated together. Error is assigned in the failure of the court to discharge the jury after the prosecuting official referred to a confession which- would be introduced in evidence, and error in the admission in evidence of Mrs. Keet’s testimony that an oral admission of guilt had been made, in view of the fact that the oral admission was later ruled inadmissible. It is urged that the prosecuting official should have known that the incriminating statements would prove inadmissible; that he nevertheless referred to appellant’s admissions for the sole purpose of inflaming the jury, and did so in bad faith. The gist of the complaint with reference to Mrs. Keet’s testimony that appellant “admitted breaking in” is that the court failed to grant a preliminary hearing on the matter and subsequently failed to give curative instructions to vitiate the harm done, as was done with approval in State v. Levy, 262 Mo. 181, 170 S.W. 1114.
This trial occurred after Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was decided, and before the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3rd 974. The requirements of Miranda are not retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Escobedo has no application in this case for the reasons stated in State v. Nolan, Mo.Sup., 423 S.W.2d 815, 817[2]. Under the law in effect on the date of this trial, April 18, 1966, the test to be applied in determining the admissibility of incriminating statements was “whether the totality of circumstances deprived defendant of a free choice to admit, to deny, to refuse to answer, and whether there was physical or psychological coercion of such a degree that defendant’s will was overborne at the time he made the incriminating statement. State v. Beasley, 1965, Mo.Sup., 404 S.W.2d 689.” State v. Craig, Mo.Sup., 406 S.W.2d 618, 623 [9], Under the totality of
The testimony of the officers and of Mrs. Keet with respect to appellant’s incriminating admissions having been admissible in evidence, the opening statement by the prosecuting official that the patrolmen would testify that defendant “orally admitted committing this * * *” was fully justified. There is nothing to show that he made the statement in bad faith with knowledge that it would be ruled out. He had the witnesses to prove that the statement was made and that it was voluntary. Miranda v. Arizona had not been decided. Under existing law voluntary incriminating statements were not excluded for failure to advise an accused of his constitutional rights. Appellant’s first two points are disallowed.
Complaint is made about the admission in evidence of two photographs, one showing the back door of the premises burglarized, the other showing divers property stacked in the living room of the premises, certain articles of which had been upset. The objection on appeal is that they are lacking in relevance and materiality; that they do not prove or disprove any issues in the case. This point is overruled for two reasons. First, no objection was made to their admission in evidence when they were offered and no ruling excluding them was requested after they were admitted. Next, they were admissible in evidence because they were of assistance to the jury in showing the locus in quo and the facts with respect to the assembling of the articles intended to be taken. They were identified by the owner of the premises. There is no contention that they do not fairly represent conditions and objects present at the time and place in evidence. A case in point, demonstrating that there was no error in their admission, is State v. Sims, Mo.Sup., 395 S.W.2d 445, 449 [5,6], See also State v. King, Mo.Sup., 334 S.W.2d 34, 38 [4].
Finally, it is claimed that the court erred in admitting the testimony of the victim of the crime with respect to his previous contacts with appellant, “reflecting the victim in a favorable light as a good Samaritan and benefactor of the de
The amended information, verdict, judgment and sentence are lawful and sufficient. Appellant was accorded allocution. He had the benefit of counsel at the trial and on this appeal. We find no error in this record.
Judgment is affirmed.
PER CURIAM:
The foregoing opinion by HOUSER, C., adopted as the opinion of the court.