Opinion
No. 40951.
February 14, 1949.
1. CRIMINAL LAW: Assisting in Lottery: No Evidence of Corpus Delicti. Independent of defendant's statements to the police there was no evidence to show the operation of a lottery or that defendant aided or assisted to establish it as a business or avocation. So the necessary elements of the corpus delicti were not established.
2. CRIMINAL LAW: Assisting in Lottery: Corpus Delicti: Independent Proof to Support Confession Required. The confession of the accused must be supported by independent proof of the corpus delicti.
3. CRIMINAL LAW: Evidence: Searches and Seizures: Constitutional Law: Arrest: Lawful Arrest: Papers on Defendant Admissible: Constitutional Rights Not Impaired. Defendant's arrest was legal, as police officers of the City of St. Louis have the right under Sec. 7691 R.S. 1939 to arrest upon reasonable grounds to suspect that a misdemeanor has been committed. There was no search, but since defendant was lawfully arrested, the police officer had the right to take from him articles of value as evidence. The use of the policy slips in evidence did not violate the constitutional provision against self-incrimination.
4. CRIMINAL LAW: Assisting in Lottery: Argumentative Instruction Properly Refused. Defendant's instruction D was properly refused because it was in argumentative form as to the effect of the policy slips as evidence.
Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.
REVERSED AND REMANDED.
Morris A. Shenker for appellant.
(1) The court erred in overruling the defendant's motion to suppress evidence heretofore filed in said cause, which motion to suppress evidence alleged and the evidence adduced in support thereof proved that the search of the defendant and the seizure of the evidence that was used in the trial of this cause before the court and jury, and the arrest of the defendant was unreasonable, and violative of the constitutional rights of the defendant. The search and seizure were not based on any warrant issued by any authority, the defendant was within the peace of the State at the time of the arrest, search and seizure, and the conduct of the police officers in executing the said arrest, search and seizure was violative of Sections 11 and 23 of the Constitution of the State of Missouri, and violative of the rights of the defendant in this cause; and the use of the said evidence at the trial against this defendant was in effect compelling defendant to give testimony against himself. Constitution of Missouri, Art. 1, Secs. 15, 19; State v. Dunivan, 269 S.W. 415. (2) The verdict and judgment in the cause is against the law applicable to this cause. Secs. 4704, 4705, R.S. 1939. (3) The court erred in admitting into evidence and permitting Sergeant O'Connell, a witness for the State, to testify over the objections and exceptions of the defendant that he arrested the defendant at a time prior to June 6, 1946, and that at the arrest of the defendant on June 6, 1946, defendant told him, "Why do you men continue to arrest me? All you do is make money for the bondsmen. I paid Mert Ward $23 to get me out the last time." This evidence tended to prove an entirely different crime than the one for which the defendant was then on trial. It was error to admit the aforesaid evidence further because it advised the jury that the defendant was arrested for criminal offenses prior to the time of the arrest for the offense for which he was then being tried, because said testimony brought the character of the defendant to issue, and was a comment on the defendant's character and reputation without the defendant having taken the stand and testifying in his own behalf. Nor was it admissible as an admission against interest but rather was an improper comment on the defendant's constitutional right not to testify against himself. Finally it was not a corroborative factor of the facts sought to be established to substantiate the cause for which the defendant was being tried, but was irrelevant and immaterial to the point at issue, and irrelevant, immaterial and incompetent in this cause. 16 C.J., sec. 1579, p. 771, sec. 1580, p. 772; 22 C.J.S., sec. 682, p. 1084, sec. 676, p. 1069; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23; State v. Tunnell, 296 S.W. 423; State v. Young, 230 Mo. 170, 140 S.W. 873; City of St. Louis v. Tanner, 143 906 S.W.2d 354. (4) The court erred in overruling defendant's demurrer, filed the second time at the close of the State's case, and which was filed on the ground that the corpus delicti had not been established, and that the evidence was insufficient to sustain a conviction under the law in the case. 16 C.J. sec. 1580, p. 772; State v. Young, 230 Mo. 170, 140 S.W. 873. (5) The court erred in failing to give and read to the jury defendant's Instruction D. which instruction correctly and accurately stated the law that is applicable to the case at bar, and which instruction submitted the converse of the State's main instruction, and which instruction the defendant was entitled to have placed before the jury for their deliberation. 1 Blashfield's Instructions (2d Ed.), sec. 143, p. 331; State v. Boyd, 354 Mo. 1172, 193 S.W.2d 596; State v. Cantrell, 290 Mo. 232, 234 S.W. 800; State v. Fraley, 342 Mo. 442, 116 S.W.2d 17; State v. Gillum, 336 Mo. 69, 77 S.W.2d 110; State v. Gurnee, 309 Mo. 6, 274 S.W. 58; State v. Hayes, 247 S.W. 165; State v. Johnson, 234 S.W. 794; State v. Majors, 237 S.W. 486; State v. Markel, 336 Mo. 129, 77 S.W.2d 112; State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511; State v. Rutherford, 152 Mo. 124, 53 S.W. 417; State v. Stewart, 29 S.W.2d 120; State v. Talbot, 351 Mo. 791, 174 S.W.2d 144; State v. Worten, 263 S.W. 124.
J.E. Taylor, Attorney General, Arthur M. O'Keefe, Assistant Attorney General, for respondent.
(1) The court did not err in overruling appellant's motion to suppress evidence. State v. Burnett, 354 Mo. 45, 188 S.W.2d 51; Hanser v. Bieber, 197 S.W. 68, 271 Mo. 236; Wehmeyer v. Mulvihill, 150 Mo. App. 197, 130 S.W. 681; State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002. (2) The evidence is sufficient to sustain the conviction. State v. Emerson, 318 Mo. 633, 1 S.W.2d 109; State v. Wilkerson, 170 Mo. 184, 70 S.W. 478; Secs. 4704, 4705, R.S. 1939; State v. Kaub, 15 Mo. App. 433. (3) Testimony of statement of appellant made at time of arrest not error. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37; State v. Davis, 143 S.W.2d 244; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643; State v. Rodgers, 102 S.W.2d 566; 22 C.J.S., sec. 628, p. 962; State v. Murphy, 345 Mo. 358, 133 S.W. 398; State v. Walker, 208 S.W.2d 233; State v. Smith, 355 Mo. 59, 194 S.W.2d 905. (4) The court did not err in refusing to give appellant's Instruction D. State v. Boyd, 193 S.W.2d 596; State v. Hicks, 353 Mo. 950, 185 S.W.2d 650.
Defendant was convicted of assisting in making and establishing a policy lottery as a business and avocation in violation of § 4704, (R.S. 1939) Mo. Stat. Ann. and sentenced to six months in the workhouse. He has appealed.
Defendant contends that the corpus delicti was not established and, therefore, statements made by him against himself (which were the basis of his conviction) were insufficient to support conviction. We find that this contention must be sustained.
Defendant was arrested in St. Louis by two police officers who saw him get out of his car with some policy drawing sheets in his left hand. As the officers approached he attempted to cover these sheets with his coat which he was carrying on his arm, but dropped them. They were recovered by the officers and they found "ten carbon copies of policy writers' top sheets that had the recordings of numerals, combination of numbers, and the amount paid in each combination of numbers; and also the result of that drawing, showing the class number of the three o'clock drawing in Lovejoy, Illinois, at the Harlem Club, on the policy drawing result ballots and also on the carbon copy of the top sheet result ballots; and also on the carbon copy of the top sheets he had the recordings of the bets." One of the officers asked defendant what business he was in and he said: "You know, I am in the policy racket"; but he further stated that they were "only making money for bondsmen" in arresting him. They also said defendant stated he wrote "for the companies that hold their meets in the Harlem Club"; that "he gets a percentage of the amount of bets that he individually writes himself, and he gets 25 cents for any bets that he takes over from other writers . . .; if they ride over in his car he charges them 50 cents." They also said defendant stated some of the sheets were in his own handwriting but that "others wrapped up separately was for another writer"; and that he said "he made daily trips back and forth to the east side, taking bets over and bringing the result ballots back." However, he refused to name any of those whose bets he wrote.
The two elements necessary to prove the corpus delicti of a lottery in violation of § 4704 are: (1) the establishing of a lottery by someone, (2) that the person charged aided or assisted in making or establishing it. [State v. Emerson, 318 Mo. 633, 1 S.W.2d 109.] To sustain a felony charge, it must also be shown that such person aided or assisted to establish it as a business or avocation. [State v. Cronin, 189 Mo. 663, 88 S.W. 604; State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002.] Proof of these elements is lacking here. Established lotteries with drawings at the Harlem Club in Illinois are merely assumed by the State and it produced no evidence of them at all. While "the body of a crime may be proved by circumstantial evidence alone" (State v. Emerson, supra) there are not sufficient circumstances in this case to amount to substantial evidence to show the existence and operation of a lottery in which defendant was assisting. There is no evidence (independent of defendant's statements) to show the operation of any lottery or what took place in the Harlem Club or what defendant did there or elsewhere. There is no testimony concerning defendant's activities in St. Louis or anything more than his possession of the papers described at the time of his arrest.
The State relies on State v. Emerson, supra, and State v. Wilkerson, 170 Mo. 184, 70 S.W. 478. The deficiency of the proof [553] in this case is well illustrated by considering the evidence of the State in those cases and in State v. Cronin, 189 Mo. 663, 88 S.W. 604. In the Emerson case, a plan showing the elements of consideration, prize and chance was evidenced by a written contract and by the facts shown to have existed which included testimony showing execution of and collection on these contracts. It was contended that there was no lottery because selection of prize winners was not by chance but by design; but it was held that there was sufficient circumstantial evidence to show selection by chance. In the Wilkerson case, the police followed defendant into a roadhouse where they found a policy wheel and other equipment for policy drawing. There was also evidence which "showed that defendant had been engaged in selling policy at intervals for five years", and defendant admitted at the trial that he was writing policy tickets. He only claimed that he was not "aiding and assisting in making and establishing a policy as a business or avocation." There was other evidence as to defendant's presence at this place at the time of daily drawings. This court held the evidence sufficient, saying: "We know of no more effective way to assist in making and establishing a business as an avocation than to participate in it and devote one's time and services in so doing." In the Cronin case, there was evidence to prove the operation of a policy establishment and the continuous presence of the defendant there, handling money and books turned in by policy venders, handing out drawings and other activities.
"It is a settled rule of criminal procedure that testimony of a confession of a crime charged, made out of Court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that a crime was in fact committed. Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526, 14 Am. Rep. 481; State v. Coats, 174 Mo. 396, 74 S.W. 864; State v. Henderson, 186 Mo. 473, 85 S.W. 576; Kelly, Crim. Law and Prac. sec. 281; 12 Cyc. 483." [State v. Young, 237 Mo. 170, 140 S.W. 873, l.c. 875.] "Proof of a confession of a crime not made in open court, without independent proof of the corpus delicti, will not sustain a conviction." [State v. Craig, 328 Mo. 938, 43 S.W.2d 413; See also State v. Capotelli, 316 Mo. 256, 292 S.W. 42; State v. Patterson, 347 Mo. 802, 149 S.W.2d 332; State v. Cooper, 358 Mo. 269, 214 S.W.2d 19.] Therefore, the Court should have directed a verdict of acquital in this case.
In this connection, since there might be another trial, we rule that there was no error in overruling defendant's motion to suppress evidence seeking to prevent the use as evidence of the policy drawing papers he had in his band when the officers approached him. His claim is that these papers were seized as a result of an unlawful search and was in effect compelling defendant to give testimony against himself, in violation of §§ 15 and 19 of Article 1, Constitution of Missouri. He relies on State v. Dunivan (Mo. App.) 269 S.W. 415 and State v. Owens, 302 Mo. 348, 259 S.W. 100. However, the evidence does not show any search. On the contrary, it discloses that defendant had the policy slips in his hand where the officers could see them and recognize what they were. Furthermore, they did not take them from defendant but saw them dropped on the ground and picked them up after he was arrested. Moreover, the right of arrest by police officers of the City of St. Louis has been broadened by § 7691 (R.S. 1939) Mo. Stat. Ann. to make an arrest lawful when there are reasonable grounds to suspect that a misdemeanor has been committed, so that it cannot be held that defendant's arrest was illegal. [See Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68; Wehmeyer v. Mulvihill, 150 Mo. App. 197, 130 S.W. 681; Commission Row Club v. Lambert (Mo. App.) 161 S.W.2d 732.] When a person is lawfully arrested, the arresting officer may take from him articles of value as evidence. [State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Williams, 328 Mo. 627, 14 S.W.2d 434.] As to the claim that the use of these policy slips in evidence violates the constitutional provision against self-incrimination, this has been ruled against defendant's contention. [State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002.]
[554] We further rule that the court did not err in refusing defendant's instruction D because it is in argumentative form as to the effect of these papers as evidence. Other matters raised should not occur on re-trial.
The judgment is reversed and the cause remanded. All concur.