State v. Burnett

429 S.W.2d 239, 1968 Mo. LEXIS 947
CourtSupreme Court of Missouri
DecidedJune 10, 1968
Docket53077
StatusPublished
Cited by46 cases

This text of 429 S.W.2d 239 (State v. Burnett) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burnett, 429 S.W.2d 239, 1968 Mo. LEXIS 947 (Mo. 1968).

Opinion

DONNELLY, Judge.

Appellant, Joseph Louis Burnett, was convicted of uttering a forged check under § 561.011, RSMo 1959, V.A.M.S., by a jury in the Hannibal Court of Common Pleas, at Hannibal, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of six years. Jurisdiction was in the Hannibal Court of Common Pleas because the offense was alleged to have been committed in Mason Township, County of Marion, Missouri. Section 480.200, RSMo 1959, V.A.M.S. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. We affirm.

According to the evidence, on February 18, 1966, “between 5 :00 and 6:00 o’clock” in the evening, Mrs. Judy Fishback was working as a teller at the Farmers and Merchants Bank. A forged payroll check, on the account of Seither & Cherry Company, and payable to “Charles Dunham,” was presented to her by appellant. Appellant endorsed the check and received $177.34 in cash.

Appellant first contends that the trial court erred in connection with testimony and argument which related to money found by a police officer in appellant’s home in St. Louis County the morning of February 19, 1966. He asserts that the “search was made without warrant and not incident to a lawful arrest and without other lawful *241 authority.” The search was made by Sergeant Timothy Mahoney of the City of Florissant Police Department. His testimony was, in part, as follows:

“Q. Do you know Joseph Louis Burnett? A. Yes, sir, I do.
“Q. You know him personally?
“A. I have had previous contact with him, yes.
“Q. How long would you say you have known him ?
“A. Approximately — from now, or the date of arrest?
“Q. From now. A. Approximately two years.
“Q. Now directing your attention to February 18, 1966, did you have occasion to go to his home on that day?
“A. It was February 19th, 12:15 A.M, when I received the call.
“Q. Just past midnight? A. Yes, sir.
“Q. Why did you go there?
“A. To assist Missouri State Highway Patrol officers in effecting an arrest.
“Q. About what time do you think you arrived there?
“A. Within two minutes, 12:17 at the most.
“Q. Who was there when you arrived ?
“A. Sergeant Beck, Trooper Ryan and Trooper Crutchfield.
“Q. All right, how did you get in the house?
“A. I was met at the door by Mr. Burnett.
“Q. Did he invite you in? A. Yes, sir, he did.”
“Q. Did you conduct a search of the premises ?
“A. Yes, sir, I did.
“Q. Did you ask him, that is, did you ask Mr. Burnett if you could conduct a search of the premises?
“A. Yes, sir, I did.
“Q. What did he say?
“A. He said go ahead, he had nothing to hide, to go ahead.
“Q. In other words, you conducted the search with his permission, right? A. Yes, sir.
“Q. Did you ever advise him that a warrant had been issued for his arrest? A. Yes, sir, I did.
“Q. Did you tell him where the warrant emanated from?
“A. Yes, sir. I advised him that he was to be arrested as a fugitive from the City of Hannibal and there was a warrant on file, to my understanding, for issuing a fraudulent check.”

We need not decide (1) whether defendant voluntarily consented to the search (see Annotation, 9 A.L.R.3d 858), or (2) whether, under the conflicting evidence, a warrant had in fact been issued prior to the time the arrest and search were made, because we believe the search was incident to a lawful arrest.

It is “elementary that an officer may make a lawful arrest without a warrant. The general rule is that he may arrest without a warrant any person whom he has reasonable cause to believe has committed a felony * * State v. Vollmar, Mo. Sup., 389 S.W.2d 20, 24.

“ * * * Police officers are authorized to arrest upon reasonable cause to suspect that one is guilty of a felony, either upon their own knowledge or upon facts ‘communicated to them by others * * *’ State v. Brown, Mo., 291 S.W.2d 615; *242 State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441. If police officers could not thus base the existence of reasonable cause upon bona fide information communicated to them in the performance of their duties, their hands would be very effectively tied.” State v. Witt, Mo.Sup., 371 S.W.2d 215, 218, 219.

“It is a settled rule in this state that when a defendant has been lawfully arrested a search may be made of his person and of the premises where he was arrested without the necessity of a search warrant.” State v. Vollmar, supra, 389 S.W.2d 20, 25. According to the evidence, a felony had been committed.

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429 S.W.2d 239, 1968 Mo. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burnett-mo-1968.