State v. O'BRIENState v. O'BRIEN
- Reporters:
- Before:
- Bohling, Westhues, Barrett (per curiam)
Under information filed in the Circuit Court of the City of St. Louis, Thomas Joseph O‘Brien was charged with the felonious stealing of a 1950 model Mercury four door sedan, the proрerty of Joseph and Lucille Messler,
The State‘s evidence (defendant offered no evidence) tended to establish the following facts. Joseph Messler and Lucille Messler, husband and wife, were the owners of a 1950 Mercury sedan, valued at $2,200. They had owned the car only six or seven weeks, when about 2:30 on the afternoon of July 25, 1950, Mr. Messler parked it near his tavern on the corner of Missouri and Cherokee in the City of St. Louis. He saw the car where hе had parked it about 6 p. m. but when he left his place of business at 6:30 p. m. he discovered it had been stolen.
Mr. and Mrs. Daus, who live at 2631 Oregon Avenue, St. Louis, Missouri, advertised a garage connected with their property for rent. On July 3 or 4, 1950, three men looked at the garage, a two-car garage, and agreed to rent it. Later defendant, who gave his name as W. M. Brockmeier, returnеd and paid the rent, $12 a month, and took Mr. Daus’ receipt therefor. He also paid the rent when it became due for the months of August and September, 1950. When Mr. Daus asked defendant if he wantеd a lock for the garage, defendant put the lock on the window sill and stated: “We have our own lock.” The windows of the garage were clear.
About 8:45 p. m. on September 6, 1950, defendant and two companions were “picked up” by the police in front of the
The Mercury automobile in the garage was the one stolen from the Messlers on July 25, 1950.
Defendant, in his brief here, contends his motion to suppress all evidence involving the key to the pаdlock on the garage and all evidence concerning the contents of the garage where the automobile was found should have been sustained on the ground said evidence was obtained by an illegal and unreasonable search and seizure.
The State contends that defendant‘s motion for a new trial does not allege error in the overruling of the motion to suppress and, hence, the point is not for review.
Defendant‘s motion for new trial stated, so far as material here: “That the court erred in admitting evidence over the defendant‘s objection concerning the discovery of a key on the defendant‘s person which allegеdly fit a padlock on a garage in the rear of 2631 Oregon, and that the court also erred in admitting evidence over the defendant‘s objection concerning the discovery of а 1950 Mercury automobile or anything else concerning the interior of the garage located at the rear of 2631 Oregon, since such evidence was obtained by an unlawful and unreasоnable search and seizure in violation of Art. 1, § 15 of the Missouri Constitution.”
Other allegations in the motion give the facts involved in greater detail; but, as contended by the State, no mention of any mоtion to suppress is to be found in said motion for new trial.
The Missouri cases are to the effect that trial courts will not pause to determine whether relevant and competent еvidence was obtained by an unconstitutional search or seizure unless the defendant has previously made a motion to suppress the evidence, or, possibly, unless he had no reаson to anticipate the evidence would be introduced and was surprised. State v. Martin, 357 Mo. 368, 208 S.W.2d 203, 207[8], and authorities cited; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887[14, 15]; State v. Cox, Mo.Sup., 259 S.W. 1041 [1-4]; State v. Lock, 302 Mo. 400, 259 S.W. 116, 125[11]; State v. Dalton, Mo.Sup., 23 S.W.2d 1, 5[6].
The questioned evidence was competent and admissible unless it was inadmissiblе for some reason independent of the evidence itself. The assignment in defendant‘s motion for new trial strikes at its admission over the objection interposed at the trial of the case, and the motion to suppress and the court‘s ruling thereon is not mentioned. What is ruled in State v. Medley, 360 Mo. 1032, 232 S.W.2d 519, 523[1], is applicable here: “The motion to suppress and the court‘s ruling thereon are not mentioned or referred to in any manner in defendants’ motion for a new trial and the matter complained of is not before us for consideration.” See also State v. Taylor, Mo.App., 266 S.W. 1017, 1018[4]; State v. Thompson, 338 Mo. 897, 92 S.W.2d 892, 893 [1]. We find no ground in the instant record for departing from the holdings in the above cases. Defendant‘s contention is overruled.
The instant information was under the habitual criminal act,
The Missouri constitution provides: “* * * nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury * * *.”
The transcript of the record shows only the motion to strike and its denial by the court. No showing was made in connection with the motion or any ground stated therein. The motion does nоt prove itself; and the record does not establish that the two prior convictions were used in another case, or, if used, that the issue was submitted to the jury, or, if used and submitted, that the jury was instructed it must impose the maximum penalty or, under the instructions, was permitted to exercise its discretion in assessing the penalty. The case is, in this respect, in a similar situation to that of State v. O‘Brien, Mo.Sup., 249 S.W.2d 433, 434[7], where a like result was reached, citing State v. Collins, supra; State v. Long, supra, and State v. Herring, Mo.Sup., 92 S.W.2d 132, 133[2-5]. We overrule defendant‘s contention.
The State mаde a submissible case. On three occasions defendant paid and accepted the landlord‘s receipt for the rent on the garage in which the stolen automobile was found. He put his own lock on the garage door and the key to the lock was found in his pocket. The stolen automobile was found in the garage, approximately six weeks later. The only explanation of defendant‘s possession was his statement, “you have got me.” State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 452[3, 5, 19]; State v. Harper, 353 Mo. 821, 184 S.W.2d 601, 602[1-3]; State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, 485 [3-5]; State v. Wyre, Mo.Sup., 87 S.W.2d 171, 173.
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All concur.