State v. Smith

tract. This is the way franchise contracts are usually made method. proper we hold is ’ dismissing appellants petition and did not err court The circuit All affirmed. concur. decree its Smith, Appellant. 40688. 209 Emmett William No. (2d)W. 138. Two, March

Division Jjee wirth, appellant. S. E. Osborn and Crook W. W. Bunder Attorney Taylor, General, J. Welborn, E. Robert R. Assistant Attorney General, respondent.

school, by ^[139] BARRETT, prying a window C. In open, July and stole seven someone entered the typewriters. Preston The charged burglary Smith, William Emmett was with the appellant, building larceny. acquitted burglarizing the but and the He was of years’ stealing and to two typewriters was convicted of the sentenced given, to imprisonment. Upon appeal this consideration will bé for re- assignments properly preserved his of error as were such of meritoriously the cause. upon and now or hereafter bear view driv- day July appellant 31st and his wife were On the of City El Chevrolet Springs from Kansas in a 1940 ing Dorado County they Harrisonville approached in Cass automobile. As .Patrol, signalled stop and Highway 71 a car them Highway get out car with patrolmen ordered them to of the their one of the they obeyed purse As Mrs. fell to up. command Smith’s hands purse The felt patrolmen picked up. ground and one of opened found heavy patrolman and the it and two exceptionally ‘‘ ’’ patrolmen revolvers, automatic and an owl head. The a 32 loaded a of the opened back door car. On floor of unlocked and then blanket, they typewriters. a discovered car, under concealed .seven doing typewriters appellant asked what he 'was with When typewriter he mechanic. One the officersunlocked was a stated that personal compartment and found their luggage there opened and discovering these articles the Upon tools. belongings and some headquar- patrol wife and the car to appellant, his patrolmen took the County they questioned where were in Jackson at Summit ters Lee’s typewriters. appellant The was concerning unable to length typewriter finally a mechanic and claimed he say where worked Springs. man in El Dorado typewriters from a purchased be had a further questioned made being patrolmen they While were baggage In their thorough the ear and its contents. search of pinch a bar. the seat there pistol. found Underneath another a ball drivers, spatula, a screw Elsewhere in the car there were several among the soles an*d hammer, with blank pair of soft-soled shoes keys. About large of miscellaneous appellant’s number effects inwife lodged Smith and his night the'patrolmen eleven o’clock that and his City jail. During night, appellant after the the Kansas learned; City jail, patrolmen lodged wife' had the Kansas (cid:127) office, school burglary of the Preston Springfield from of the their morning following The Smith and the theft of the seven headquarters sometime patrol and his wife were returned to County a war- Hickory appeared during day the sheriff belonged to found in car rant and them. arrested precisely indentations pinch school and the bar fitted district pried window. he in which suppress filed a motion detention, forth the search of the car set the circumstances his the seizure of its contents and specifically prohibited by alleged the State the search Highway Patrol and seizure ‘Act (Mo. A., prohibition R. S. the constitutional Sec. violated Mo., I, against Art. unreasonable searches and seizures. Const. necessary 15. It is in the this' to detail the disposition appeal were un the search and seizure circumstances demonstrate that rights. It appellant’s lawful and violative constitutional say sufficient that the search purposes opinion for the court have sustained seizure were unlawful that the trial should (State suppress Owens, 348, 302 Mo. 259 W. the motion to S. Morice, (Mo.) (2d) 741) follow but it does not appellant in the to be circumstances of this record that the is entitled discharged or have the cause remanded for that reason. personal seizures, right against unreasonable searches and by constitution, right against

secured like self-incrimination may employed confrontation be or so used or that one waived may right upon lose insist to their strict enforcement or to com plain infringement. Graves, 1102, 1114, of their 352 Mo. (2d) 46, 54; S., 458, 182 S. W. Motes v. U. 178 U. S. Ct. S. L. 993, 44 Upon appellant Ed. 1150. trial of this cause the so position complain conducted and his he is in no himself defense that rights. voluntarily testifying of the In invasion his constitutional (Mo. A., R. burglarized S. he that he had the school denied building or that he had he stolen the He denied that stopped possession had ever in Preston. He admitted of the seven typewriters them purchased but testified that he from Crawford July Bennett in El on 1945 for Springs day Dorado the 31st bargain $140.00. While he conceded typewriters that the were a at twenty dollars he suspicion they each did not that had been stolen. He testified he pinch that owned explained bar but he had that purchased it used it to tear down a he operated stand at carnival in El Dorado Springs. In addition he in evi- offered newly pinch dence another purchased bar attempted demon- strate that it likewise fitted on the the indentations school window. presence He admitted plates, of the two license one in and one car, explained his recently but he purchased that had but the car plate that reason the 1945 license as well as the title car had not him been transferred plate and the mutilated 1942 by previous was left there spatula owner. He testified that the a “putty knife” which he used in his carnival concession. ownership claimed He of the screw and the ball drivers hammer but any testified that he had not used building these tools on the school blank, belonged but, in Preston. The soft-soled shoes to him he ex- plained, they only unrationed shoes. emphasized

It should be is not mere that fact of his testi fying that renders harmless the state’s invasion of his constitutional rights illegally excuses the use of the obtained If evidence. voluntarily given had not possession he evidence of his and owner ship of the implements and other he would not have destroyed right upon his to now protection insist of his constitu guaranties. Agnello tional v. U. 269 U.S. Ct. any ques 70 L. Ed. Had he knowledge denied whatever of the he tioned evidence would not have rendered harmless the state’s use by illegally merely testifying seized evidence own de in his S., 37 (2d) 677; State, (Miss.)

fense. Cofer v. F. Parkinson v. U. testifying negatives 110 So. 513. It not the of his all fact right upon his rights his insist constitutional but it is the fact and voluntarily force what he to and prevents testifies admits that his continuing upon In testifying insistence their enforcement. appellant voluntarily every sought admitted fact

case the state by evidence, namely he using to show owned articles car. only had them in difference or his between state concerning'the questioned appellant conflicting evidence was the in Having have draw. ferences would testified volun tarily questioned possession his admitted owner or objectionable articles the ship not now' com by unlawful plain that it was obtained an search and seizure in the first appellant was instance. ^[141] charged In State v. Park, receiving stolen 16 S. W. (2d) property set —a voluntarily held, when he testified and admitted of harness.' It was not harness claimed that he did know that it had possession of the but object longer illegally that the state stolen, he could no that applied has rule two Mississippi in seized the harness.

472 State, v. Rawls 112, 577; 93 State, So. 130 Miss.

cases. Blowe v. . (Miss.) 120 So. 211 that stills have claimed liquor In cases defendants several and then seizures liquor by unlawful searches had been obtained attempted but possession their voluntarily and admitted have testified have exception, the courts one and, with but explain or excuse of the state’s complain could not thereafter held that the defendants Wernecke, S. v. illegally evidence. U. obtained initial use of the McFarland (2d) 517; 561; S., 80 F. (2d) Edmondson v. U. 138 F. 300; Temperani S., v. 299 Fed. S., (2d) 140; 11 F. Libera U. v. U. (2d) (Tex.) 77 W. State, S. S., 365; McDonald v. v. 299 U. Fed. State, (Miss.) v. State, 285; Prine 685; (Miss.) v. 130 So. Goodman 241, 242; Dyer v. (Miss.) Watson, v. 98 So. 687; State 130 So. S., 51 v. U. State, (Okla.) exception Pac. 69. The Korska 220 held that Eighth Appeals (2d) F. in which the Circuit Court 330 of this compelled by or the introduction “induced the defendant waived his illegal testimony” give and therefore not object and the use right to the unlawful search seizure dissented, thereby. Judge pointing out evidence obtained Stone voluntarily has testified. The rule nevertheless the defendant had testi in a narcotics where the defendant in applied also been case pur fying possession of the narcotics but claimed to have admitted S., (2d) F. from a White v. 870. chased them dealer. U. 16 cursory Even review of the circumstances demonstrate guilty grand larceny jury reasonably found the Denison, 572, v. Mo. 178 W. stealing State 352 S. (2d) (2d) 449; Oliver, 173, v. 195 S. W. 484. In 355 thirty dollars, con disputably typewriters the value of the exceeded sequently no for an on either sub there was occasion instruction larceny. Hannon, (Mo.) v. 204 ject petit of their or on worth 915; Wells, (Mo.) 234 S. W. 825. The defen (2d) State v. rely Hamlin, (State an alibi 351 Mo. dant S. did merely 716), he denied the offense claimed that he had W. (2d) Preston, stopped in hence the exact time was not never an-essential (State Taylor, offense in this case element necessary charge 366) and it was neither nor (2d) prove W. S. presence precise A., time. R. S. appellant’s (Mo.) (2d) Proffer, English, (Mo.) 159 S. W. State v. State v. doubt, in W. There can be no the circumstances, 228 S. admissibility property, in evidence the stolen (2d) 3, W. (State Stephens, (Mo.) pinch bar, 8 S. or of the drivers, implements screw hammer and such of spatula, reasonably justify the inference that were or would had been offense. 22 710, 712, C. J. Secs. used in commission 1203-1207; Pease, 143 A. L. R. 1199. (Mo.) annotation State v. pp. neatly point. (2d) W. illustrates the There the offense was

473 cartridges it beld “The shells or burglary and and was tbat entry in evidence as properly of received point at the were found offense, alleged surrounding the commission circumstance in connection with when taken tending to connect accused therewith his person found on when or similar shells were the fact like ’’ fall properly night. Such of the articles the saíne arrested later in evidence. appropriately were received within this classification pistols to or to other articles apply But rule does not the the category. the hear clearly appears fall in It from do not this which pistols found in ing suppress evidence that the two of the motion belonged appellant, but when he testified purse Mrs. Smith's by state that pistols. It was not claimed he did not mention the larceny. burglary pistols had when he committed Smith from fair or or circumstance which it was a even There fact was no possible inference that he did. The state’s theory was that the by burglary burglarized in stealth the use of the tools been school had secretly away. two the. carried and that from Mrs. purse taken Harrisonville pistols loaded were Smith’s apd larceny. party burlary she not claimed that it was by pistols said, have it was not even claimed the state that the As we being any the offense for which tried. connection with Smith was patrolman when the first p. 22 Nevertheless C. J. together were offered received evidence pistols testified evidence, That introduction in before exhibits. with all the other circumstances, weapons, lethal under the jury, mixed these this v. 334 prejudicial Richards, self-evident. State was erroneous is Wynne, v. Mo. (2d) 58, 353 485, 494, S. W. 67 (2d) 299-300. 287-289, W. 182 S. appellant is not in a contends however that state' request no complain of the error because there was to now

position jury action on discharge part or for further for a finally jury’s excluded from the pistols when the trial court apply to the this The state seeks to consideration. circumstances 681, 700, v. ITepperman, rule followed in State case the only prejudicial not must there be error in (2d) 878, S. W. objectionable must appellant evidence but the the admission of requested part of the trial court and have .further action also it be discharge jury, otherwise assumed that moved have orally instructing jury to dis the court’s he was satisfied evidence. regard the concerning subject how- are reconcilable of cases lines The two carefully ease are circumstances each facts and ever when objectionable ob- When evidence is analyzed considered.' (State Nasello, volunteered spontaneously

viously or Walker, (Mo.) (2d) 569) 46 S. (2d) 132; W. W. 442, 30 S. (State Merrell, (Mo.) patently prejudicial is or the evidence objection, upon first promptly, when the court objection and instructs the proffered sustains an objecting to from further disregard precluded requests some he also prejudicial effect the evidence unless finally part of moves court to other action on the the court and the 904; 122, discharge jury. Holmes, the State v. 316 Mo. 289 S. W. 909, Johnson, (Mo.) 41; Sinovich, State v. 292 W. v. 329 Mo. S. State 877; Grubbs, (2d) Hepperman, supra. 46 S. W. State v. State v. 852, lar 243, burglary W. for and prosecution 316 Mo. 289 S. was a ceny held and in similar circumstances it was even evidence .that subject immediately and other to the court thefts was not review when objection jury disregard an promptly sustained the to instructed the evidence. finally objection

But the fact that the court an the sustains to jury’s admission of evidence from con withdraws the evidence the orally jury disregard sideration or instructs the the does necessarily not the cure error and in instances a such defendant always precluded complaining not from even upon appeal thereafter requested though discharge jury, he has not the the re court primand take counsel or some further affirmative 24 J. action. C. 1915, 973, Barnard, pp. 978; State v. 64 v. 260; Mo. State Kuehner, 193, 118; Thomas, 235, 93 6 S. W. State 99 Mo. Martin, (a leading- S. W. 129 W. 229 Mo. Benson, case) ; (2d) State v. (1900), burglary

Hale 56 S. W. was a from case County Polk represented by and the was the special prose cutor in this case. concerning objectionable

The facts and circumstances the evi-. dence in this these: patrolman picked ease are who up purse pistols -discovered first testified the fact. When defense objected counsel pistols pos- that the in appellant’s had not been s'essionthe “I parties they court said: believe the testified that the car together” objection. Defense then overruled counsel objected they pistols prove to the because did tend to burglary larceny inquired then The court for what purpose pistol being special prosecutor evidence was offered. The replied: pistols, and that “For purpose ordinary citizens showing wouldn’t that they be carrying loaded loaded pistols.” objection. The court then im- overruled the Counsel mediately objected pistols that introduction of the prove tended to they another which trial, crime for the defendant was not on that burglary had no connection with the for which the defen- ‘‘ further, being dant was tried and reason it is our contention purpose that for the prejudicing jury.” would be objections. specific court overruled of these each Then the court question: objection sustained an that "Is the revolver-that

C7t “Yes, sir, purse”? ancl the we did.” in Mrs. Smith’s answer was “You objections their Defense counsel renewed the court said: found, exhibiting anything. else he him what without Let ask ’’ proceeded what he found. to describe him describe The witness then Upon in detail and how and where he found them. further pistols the court ruled: objection “Proceed.” The witness then testified questioned concerning pistols, Smith admitted owning all three of them and said that he intended to sell them. patrolman objection the second When testified the court sustained an concerning pistols. his evidence Counsel then said: I “And jury discharged, prejudi- further ask that this be on a«count of that found pistols purse. cial statement” two loaded in his wife’s disregard The court instructed the the evidence. At the con- prosecutor specifically clusion of the state’s evidence in chief the every to, offered in evidence each and article typewriters, testified bar, drivers, hammer, pinch plates, the screw the license spatula, keys, the bunch of the shoes and in conclusion said: “I revolvers, also offer in evidence the two and the shells.” The court objection an sustained the introduction of the and upon revolvers being requested jury against considering to instruct them said: gentlemen jury, “Ladies apprehended these officers defendant, along Smith, (she charged with Mrs. was not her hus- testify defense) investigation, in his band did made some testimony and there was some about two revolvers that were in her custody. right testimony, You have no to consider the about the two defendant, revolvers, against Smith, William Emmett that, testimony, yon Court has held under the have no to con- right objection, jury, as to their sider that fact. The submission will be sustained.”

Nevertheless, circumstances, in our view of the prejudicial weapons lethal force of these was not removed from the minds of the jurors and whether it was removed from their consideration appellant’s guilt cannot be known. The initial introduction in evi pistols approved -by specifically dence was the’ court’s first Subsequently objection ruling. the court sustained an to their intro disregard jury “But, duction and instructed the them in this case, objection testimony specific overruled, to the and it went with the sanction o'f the court. It was of a character to prejudice Hopper, each of the defendants. And in the disregard was held that an instruction to evidence im it admitting admitted would not cure the error of it if was properly prejudice of a character to defendant’s ease.” State v. Fredericks & Reed, case. judgment cause

Because of the error noted the is reversed Bohling, GG., Westhues and concur. remanded. C., foregoing opinion by BaRrett, adopted

PER CURIAM: The judges All opinion of the court. concur. as the

Case Details

Case Name: State v. Smith

Court Name: Supreme Court of Missouri

Date Published: Mar 8, 1948

Citation: 209 S.W.2d 138

Docket Number: No. 40688.

Court Abbreviation: Mo.