209 S.W.2d 138 | Mo. | 1948
Lead Opinion
In July 1945 someone entered the Preston school, by prying a window open, and stole seven typewriters. The appellant, William Emmett Smith, was charged with the burglary and the larceny. He was acquitted of burglarizing the building but was convicted of stealing the typewriters and sentenced to two years' imprisonment. Upon this appeal consideration will be given to such of his assignments of error as were properly preserved for review and may now or hereafter bear meritoriously upon the cause.
On the 31st day of July 1945 the appellant and his wife were driving from El Dorado Springs to Kansas City in a 1940 Chevrolet automobile. As they approached Harrisonville in Cass County on Highway 71 a State Highway Patrol car signalled them to stop and one of the patrolmen ordered them to get out of the car with their hands up. As they obeyed the command Mrs. Smith's purse fell to the ground and one of the patrolmen picked it up. The purse felt exceptionally heavy and the patrolman opened it and found two loaded revolvers, a 32 automatic and an "owl head." The patrolmen then unlocked and opened a back door of the car. On the floor of the car, concealed under a blanket, they discovered seven typewriters. When asked what he was doing with the typewriters the appellant stated that he was a typewriter mechanic. One of the officers unlocked and opened the luggage compartment and there found their personal belongings and some tools. Upon discovering these articles the patrolmen took the appellant, his wife and the car to patrol headquarters at Lee's Summit in Jackson County where they were questioned at length concerning the typewriters. The appellant was unable to say where he worked as a typewriter mechanic and finally claimed that *470 he had purchased the typewriters from a man in El Dorado Springs. While they were being questioned the patrolmen made a further and thorough search of the car and its contents. In their baggage they found another pistol. Underneath the seat there was a pinch bar. Elsewhere in the car there were several screw drivers, a spatula, a ball hammer, a pair of soft-soled shoes with blank soles and among the appellant's effects a large number of miscellaneous keys. About eleven o'clock that night the patrolmen lodged Smith and his wife in the Kansas City jail. During the night, after the appellant and his wife had been lodged in the Kansas City jail, the patrolmen learned, from their Springfield office, of the burglary of the Preston school and the theft of the seven typewriters. The following morning Smith and his wife were returned to patrol headquarters and sometime during the day the sheriff of Hickory County appeared with a warrant and arrested them. The typewriters found in the car belonged to the school district and the pinch bar fitted precisely the indentations of the pried window.
[1] The appellant filed a motion to suppress evidence in which he set forth the circumstances of his detention, the search of the car and the seizure of its contents and alleged that the search and seizure [140] were specifically prohibited by the State Highway Patrol Act (Mo. R.S.A., Sec. 8362) and violated the constitutional prohibition against unreasonable searches and seizures. Const. Mo., Art. I, Sec. 15. It is not necessary in the disposition of this appeal to detail the circumstances and demonstrate that the search and seizure were unlawful and violative of the appellant's constitutional rights. It is sufficient for the purposes of this opinion to say that the search and seizure were unlawful and that the trial court should have sustained the motion to suppress (State v. Owens,
The personal right against unreasonable searches and seizures, secured by the constitution, like the right against self-incrimination and of confrontation may be waived or so used or employed that one may lose the right to insist upon their strict enforcement or to complain of their infringement. State v. Graves,
It should be emphasized that it is not the mere fact of his testifying that renders harmless the state's invasion of his constitutional rights and excuses the use of the illegally obtained evidence. If he had not voluntarily given evidence of his possession and ownership of the typewriters and other implements he would not have destroyed his right to now insist upon the protection of his constitutional guaranties. Agnello v. U.S.,
In several liquor cases defendants have claimed that stills and liquor had been obtained by unlawful searches and seizures and then have voluntarily testified and admitted their possession but attempted to explain or excuse it and, with but one exception, the courts have held that the defendants could not thereafter complain of the state's initial use of the illegally obtained evidence. U.S. v. Wernecke,
[2, 3] Even a cursory review of the circumstances demonstrate that the jury reasonably found the appellant guilty of grand larceny in stealing the typewriters. State v. Denison,
[4] But the rule does not apply to the pistols or to other articles which clearly do not fall in this category. It appears from the hearing of the motion to suppress evidence that the two pistols found in Mrs. Smith's purse belonged to the appellant, but when he testified he did not mention the pistols. It was not claimed by the state that Smith had the pistols when he committed the burglary and larceny. There was no fact or circumstance from which it was a fair or even possible inference that he did. The state's theory was that the [142] school had been burglarized in stealth by the use of the burglary tools and that the typewriters had been secretly carried away. The two loaded pistols were taken from Mrs. Smith's purse at Harrisonville and it was not claimed that she was a party to the burlary and larceny. As we have said, it was not even claimed by the state that the pistols had any connection with the offense for which Smith was being tried. 22 C.J.S., Sec. 712, p. 1207. Nevertheless when the first patrolman testified the pistols were offered and received in evidence together with all the other exhibits. That the introduction in evidence, before this mixed jury, of these lethal weapons, under the circumstances, was erroneous and prejudicial is self-evident. State v. Richards,
[5] The state contends however that the appellant is not in a position to now complain of the error because there was no request for a discharge of the jury or for further action on the part of the trial court when the pistols were finally excluded from the jury's consideration. The state seeks to apply to the circumstances of this case the rule followed in State v. Hepperman,
The two lines of cases concerning this subject are reconcilable however when the facts and circumstances of each case are carefully analyzed and considered. When the objectionable evidence is obviously or spontaneously volunteered (State v. Nasello,
But the fact that the court finally sustains an objection to the admission of evidence and withdraws the evidence from the jury's consideration or orally instructs the jury to disregard the evidence does not necessarily cure the error and in such instances a defendant is not always precluded from thereafter complaining upon appeal even though he has not requested the court to discharge the jury, reprimand counsel or take some further affirmative action. 24 C.J.S., Sec. 1915, pp. 973, 978; State v. Barnard,
The facts and circumstances concerning the objectionable evidence in this case are these: The patrolman who picked up the purse and discovered the pistols first testified to the fact. When defense counsel objected that the pistols had not been in the appellant's possession the court said: "I believe the parties testified that they were in the car together" and overruled the objection. Defense counsel then objected to the pistols because they did not tend to prove the burglary and larceny of the typewriters. The court then inquired for what purpose the pistol evidence was being offered. The special prosecutor replied: "Forthe purpose of showing that they had [143] the loadedpistols, and that ordinary citizens wouldn't be carrying loadedpistols." The court then overruled the objection. Counsel immediately objected that the introduction of the pistols tended to prove another crime for which the defendant was not on trial, that they had no connection with the burglary and larceny for which the defendant was being tried "and further, for the reason it is our contention that it would be for the purpose of prejudicing the jury." The court overruled each of these specific objections. Then the court sustained an objection to the question: "Is that the revolver that was *475 in Mrs. Smith's purse"? and the answer was "Yes, sir, we did." Defense counsel renewed their objections and the court said: "You may ask him what else he found, without exhibiting anything. Let him describe what he found." The witness then proceeded to describe the pistols in detail and how and where he found them. Upon further objection the court ruled: "Proceed." The witness then testified that Smith had been questioned concerning the pistols, admitted owning all three of them and said that he intended to sell them. When the second patrolman testified the court sustained an objection to his evidence concerning the pistols. Counsel then said: "And I further ask that this jury be discharged, on account of that prejudicial statement" that they found two loaded pistols in his wife's purse. The court instructed the jury to disregard the evidence. At the conclusion of the state's evidence in chief the prosecutor specifically offered in evidence each and every article testified to, the typewriters, the pinch bar, the screw drivers, the hammer, the license plates, the spatula, the bunch of keys, the shoes and in conclusion said: "I also offer in evidence the two revolvers, and the shells." The court sustained an objection to the introduction of the revolvers and upon being requested to instruct the jury against considering them said: "Ladies and gentlemen of the jury, these officers apprehended the defendant, along with Mrs. Smith, (she was not charged with her husband and did not testify in his defense) and made some investigation, and there was some testimony about two revolvers that were in her custody. You have no right to consider the testimony, about the two revolvers, as against this defendant, William Emmett Smith, the Court has held that, under the testimony, you have no right to consider that fact. The objection, as to their submission to the jury, will be sustained."
Nevertheless, in our view of the circumstances, the prejudicial force of these lethal weapons was not removed from the minds of the jurors and whether it was removed from their consideration of the appellant's guilt cannot be known. The initial introduction in evidence of the pistols was specifically approved by the court's first ruling. Subsequently the court sustained an objection to their introduction and instructed the jury to disregard them "But, in this case, a specific objection to the testimony was overruled, and it went to the jury with the sanction of the court. It was of a character to prejudice each of the defendants. And in the State v. Hopper,
Because of the error noted the judgment is reversed and the cause remanded. Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur. *476