267 S.W. 858 | Mo. | 1924
Lead Opinion
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 sent 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 *343 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 *344 violation of his rights under Sections 11 and 23, Article 11, 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 memoranda, written and printed, of the contents thereof taken by the State for the purpose of using the same against the defendant. The motion prayed that all such evidence be suppressed and the memoranda delivered to the defendant or destroyed. The court took evidence on the motion.
William Doran, a police detective, testified that he arrested the defendant October 21st, and took him to the station where the key to the safe-deposit box and receipt for the rent of it were taken from him. Doran afterwards called up Mr. Gregory, a Federal narcotic agent, who caused a search warrant to be issued by George D. Beardsley, United States Commissioner, directing Gregory, in the name of the President of the United States, to search the safe-deposit vaults of the New England Company. Gregory, in company with Mr. Greeson, also a narcotic agent, accompanied by Mr. Seaton, vice-president of the Livestock State Bank, and Mr. Doran presented themselves at the New England Company, armed with the search warrant issued to Mr. Gregory, and demanded the right to search the box of the defendant. The Vaults Company delayed the matter until its attorney could arrive and then the search was made and the contents of the box noted in the memoranda preserved. Mr. Seaton gave the numbers of the five-dollar bills found there, which he afterwards testified to at the trial. The court on hearing this evidence overruled the motion and error is assigned to that ruling on several grounds.
I. Appellant claims that a case was not proven against him and earnestly urges that he be discharged *345 in this court From the above brief statement of theSufficient facts it is clear that the evidence, aside from thatEvidence. obtained by the search of defendant's deposit box, was entirely sufficient to sustain a verdict of guilty.
II. No complaint is made as to the manner of the defendant's arrest; he was lawfully arrested. Being lawfully arrested, the officers had a right to search him and his possessions in the room where he was arrested and take from him anySearch After article which might be used in securing hisLawful conviction. [State v. Owens,
III. Using the information obtained in searching the defendant the state officers, under Sections 4116 and 4130, Revised Statutes 1919, of Missouri could have caused a search warrant to be issued under state authority, and could have searched the safety deposit box. They had complete information, soSearch by that a search warrant could have met everyFederal requirement. The officers knew, or had reason to know,Officer. what was in the safe-deposit box. Instead of that, the state officers turned the matter over to Federal narcotic agents. Mr. Gregory opened the box and made the search by virtue of the warrant issued by the United States Commissioner Beardsley, and while Mr. Doran was present he did not conduct the examination nor participate in it. It was solely under the authority of the Federal agents; therefore it was not in contravention of Sections 11 and 23 of the State Constitution, which protects against unreasonable search only on the part of state officers and state agents. *346
[Weeks v. United States,
The fact that Doran gave information to the Federal officers would not affect this question. The Federal officers had a right to proceed to make the search for any violation of the Federal law, and with a valid search warrant could have obtained such information when desired. Doran did not control the Federal agents, and had no authority whatever in the conduct of the investigation. He had a right to give them the information as to the ownership of the safe-deposit box; the use they made of it afterwards didn't affect his duties nor affect the right of the State to avail itself of the information it might obtain in that way. So far as the State Constitution is concerned the motion to suppress was properly overruled.
IV. A different question is presented when we consider the claim that the production of the evidence obtained was in violation of the defendant's rights under the Federal Constitution. State courts are as much under obligation to protect the rights of defendant guaranteed him by theIllegal United States Constitution as those guaranteed him byFederal the Constitution of this State, and the Federal SupremeWarrant. Court may review the action of this court in consideration of this question. We are bound to follow the rulings of the Federal court in respect to this particular matter.
The search warrant is conceded by the State to be insufficient and void. The affidavit is not set out in the record, but the search warrant is. It briefly states that complaint on affidavit was made before the United States Commissioner by Bert S. Gregory, U.S. Internal Revenue officer, that he has reason to believe that fraud is being committed upon the revenue laws of the United States by the use of the Safety Iron Deposit Box 1832, etc., describing the place, "said safety-deposit box being *347
now rented, used and controlled by Charles Rebasti for the unlawful sale and concealment of narcotic drugs," etc. There is no allegation that any narcotic drugs of any kind are in the safety-deposit box, nor of any other fact which would justify a search. The search was illegal and void. [Woods v. United States, 279 F. 706; Giles v. United States, 284 Fed. l.c. 214; Veeder v. United States, 252 Fed. l.c. 419; State v. Lock,
It is contended that because this case arises in the State court, and not in a Federal court, this court cannot take notice of the restriction of the Fourth and Fifth amendments to the Federal Constitution.
It is unthinkable that a State court is powerless to protect the constitutional rights of its citizens, guaranteed by the Federal Constitution. To hold the evidence of the Federal agents admissible in this case is to pronounce that doctrine. It is to say that the act of an officer, or of any other individual, is lawful or unlawful, not on account of the character of the act, but on account of the court in which it is called in question.
The restriction of the Fourth and Fifth amendments to the Federal Constitution apply only to Federal officers. The like restrictions in the State Constitution apply only to State officers. When a case arises in a Federal court and a State officer, as a witness, is asked to give evidence discovered by him in an unreasonable search, and the provisions of theFederal Constitution are invoked in objection to his testimony, the court always holds that he may testify because the restrictions of the Federal Constitution do not apply to him.
Likewise, in a State court, when a Federal official is offered as a witness and is asked to testify to some *348 facts which he discovered by an unreasonable search, and the State Constitution is cited in objection, his evidence is held competent because the restrictions of the State Constitution do not apply to him. But when a Federal officer is offered as a witness in a State court, and his evidence is objected to because discovered in violation of the Federal Constitution, no case is cited where it is held admissible.
Such constitutional restrictions of Federal officers and State officers always apply wherever they are called in question.
Suppose a Federal officer should make an unreasonable search, and in doing so outrage the citizen's rights under the United States Constitution. Can it be said that the unlawful act of the officer could become lawful because of the court in which it is questioned? Suppose the injured citizen should sue him in the State court for damage done in violation of his constitutional rights, and the officer in defense should plead that, although he acted unlawfully, the plaintiff had no right to prove it in a State court. Does anyone suppose the plea would be good?
In this case the Federal officer violated the constitutional rights of the defendant, and violated the constitutional restrictions upon his own behavior as a Federal officer. Had the case been pending in the Federal court he could not have testified, because his act in procuring his information wasunlawful. His case, however, is pending in the State court and it is contended that he may testify because his act was lawful. By that theory his act becomes lawful or unlawful, not because of its quality, but because of the court which decides the question. He can bring his misdemeanor to a State court and there have his lawless disregard of his official duty appraised as a meritorious performance.
Numerous cases are cited in support of the opposite view, where it is said that the amendments to the Federal Constitution are intended to limit the powers of the national government alone and do not affect the *349 powers of the state governments. This is construed by the prosecution to mean that the restrictions of the national government do not affect State courts. But the cases cited do not so hold. Where the opinions in such cases hold that the Fourth and Fifth amendments to the Federal Constitution operate upon the Federal government only and not upon the State government, they mean, of course, the agents of the Federal government. If those amendments are intended to restrain the actions of Federal officers, why should it ever be held that under certain conditions they do not restrain them?
The case of People v. Adams, 176 N.Y. l.c. 356,
Consider the consequences that would flow from holding that a Federal officer may testify in a State court to a fact discovered by an unlawful search in violation of the Federal Constitution. Suppose a State Sheriff and a Federal marshal should act together. They could go anywhere, search any premises or any person, without a warrant, without authority, in entire disregard of constitutional restrictions upon each. Cases come up in the Federal court and in the State court in which they are called upon to testify to facts discovered in their unlawful depredations. If the evidence in this case is admissible, then the Federal officers could testify in the State courts to what they *350 would not be allowed to say in the Federal court, and the State officers could testify in the Federal court to what they would not be allowed to say in the State court. Thus they would make out a case in each court in utter defiance of constitutional restrictions on each of them.
The only safe and sound construction of the situation is to say that when a Federal officer violates the constitutional restriction upon his conduct so as to make evidence procured in such violation incompetent, that it is incompetent everywhere offered.
V. It is claimed by the defendant that the court committed error in excluding the records of the Circuit Court of Jackson County, showing that the Livestock State Bank had sued this defendant by a civil suit to recover $9500, claiming it had been taken from the messenger at the time of the robbery.Record in The suit is against Charles Rebasti, Ernest Hodges,Civil Case. and Edgar Holmes. The point urged is that the evidence of that suit would tend to show animus, motive and interest. We are unable to see how it would add anything to the evidence introduced. The plaintiff, Livestock State Bank, proved it had been robbed of $9500. The evidence offered would add nothing to the necessary interest shown by the fact. In effect the evidence would tend to show that the bank had a chance to get its money back and might thereby soften the attitude of the jury towards the defendant. Only two officers of the bank testified — Crump in regard to the robbery, and Seaton as to his presence when the deposit box was opened. We hardly understand how this evidence would affect the credibility of those witnesses who testified to facts undisputed. As shown above, Mr. Seaton's evidence was incompetent for other reasons, and Crump's testimony as to the facts was not questioned in any way.
The judgment is reversed and the cause remanded. Graves, C.J.,James T. Blair, Ragland and Woodson, JJ., concur; Walker,J., absent; David E. Blair, J., dissents in separate opinion. *351
Dissenting Opinion
The opinion of Judge WHITE reverses the judgment and remands the case solely upon the ground that error was committed in the admission of the testimony of Federal officers who secured access to the safety-deposit box of defendant by means of an illegal search warrant. I am unable to concur in this part of the opinion. I agree that the motion to suppress the testimony was properly overruled, in so far as the Missouri Constitution was invoked.
The real question in the case, concretely stated, is: Does the fact that an unlawful seizure and search were made by Federal officers render the evidence procured thereby inadmissible upon the trial of the case in the State court, when such evidence, after timely and proper motion to suppress, could not have been used in the Federal court? The majority opinion so holds. To this proposition I dissent.
In Twining v. New Jersey, 211 U.S. l.c. 93, Mr. Justice MOODY said: "It is not argued that the defendants are protected by that part of the Fifth Amendment which provides that `no person . . . shall be compelled in any criminal case to be a witness against himself,' for it is recognized by counsel that by a long line of decisions the first ten amendments are not operative on the states. [Barron v. Baltimore, 7 Pet. 243; Spies v. Illinois,
In Barron v. Baltimore, supra, speaking of the Fifth Amendment to the Federal Constitution, Mr. Chief Justice MARSHALL said:
"The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their *352 situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself: and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct government, framed by different persons and for different purposes
"If these propositions be correct, the Fifth Amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest."
In Spies v. Illinois, supra, Mr. Chief Justice WAITE said: "That the first ten Articles of Amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the National Government alone, was decided more than a half century ago, and that decision has been steadily adhered to since."
In Brown v. New Jersey, supra, Mr. Justice BREWER said: "The first ten amendments to the Federal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on Federal Government."
In Barrington v. Missouri, supra, it was held that the question of defendant being compelled to become a witness against himself in violation of the Fifth Amendment to the Federal Constitution was not properly saved for consideration by the United States Supreme Court. But, in passing, Mr. Chief Justice FULLER said: "Moreover, Article V of the amendments, alone relied on, does not operate as a `restriction of the powers of the State, but was intended to operate solely upon the Federal Government.' [Brown v. New Jersey,
In Weeks v. United States,
In Burdeau v. McDowell,
In Kanellos v. United States, 282 F. 461 (C.C.A. 4th Circuit), WOODS, Circuit Judge, said: "In Burdeau v. McDowell,
That the Fourth and Fifth Amendments of the Federal Constitution may not be successfully invoked in criminal prosecutions in the State courts has been clearly decided in several reported State cases, which my brief examination has disclosed.
In People v. Adams, 176 N.Y. l.c. 356, BARTLETT, J., said: "The first point made by the learned counsel for the appellant is that by reason of the seizure of defendant's papers, as in the manner described, the defendant's constitutional right to be secure in his person, papers and effects against unreasonable searches and seizures, was violated, and he was also thereby compelled to be a witness against himself, in contravention of the Fourth, Fifth and Fourteenth articles of the amendments to the Constitution of the United States, and Article 1, Section 6, of the Constitution of the State of New York, and Section 11 of the Bill of Rights of this State. Articles Four and Five of theamendments to the Constitution of the United States do not applyto actions in the State courts." (Italics my own).
In State v. Magnano,
In City of Sioux Falls v. Walser, 187 N.W. (S.D.) 821, WHITING, J., said: "It seems to be the contention of appellant that the holdings of the Federal court declaring the effect of the Fourth and Fifth Amendments to the Federal Constitution (being in effect the same as Sections 9 and 11, supra) are controlling upon this court. That said Amendments 4 and 5 do not govern the several states and the courts thereof is the settled law of this country."
In Kennemer v. State,
From the foregoing, I think it is quite clear that the contention that defendant's rights under the Fourth and Fifth amendments to the Federal Constitution, which were said to have been violated by Federal officers, cannot avail him in a prosecution in this State for a violation of the laws of this State. Said sections are only limitations upon the Federal government and its officers in actions for violations of Federal statutes when tried in courts of the Federal government. In a criminal prosecution in the courts of this State, the acts of Federal officers stand upon the same footing as acts of private individuals. Such officers are not part of the state machinery. In permitting the use of evidence obtained through unlawful search and seizure by such Federal officers, the State is in no sense taking advantage of a wrong perpetrated by its own officers. The denial of the right to take advantage of such wrongs at the *356 hands of its own officers is apparently the basis for the rulings recently made by this court and in others, as well as in the Federal courts, that evidence so obtained may not be used, when objection thereto has been timely and appropriately made.
I respectfully dissent from the opinion of Judge WHITE, in so far as it reverses and remands the judgment upon the ground herein discussed.
