State Missouri v. Henry Cleo Napper

The defendant, Henry Cleo Napper, was charged with stealing personal property of the value of $50 or over in the City of St. Louis. The information invoked the provisions of the habitual criminal act and alleged that defendant had theretofore been convicted of certain felonies. Trial of the case before a jury resulted in a verdict finding him guilty of stealing property of a value of $50 or more. It was stipulated and agreed between the State and defendant that he had been previously convicted of three felonies, sentenced and imprisoned therefor and subsequently discharged, all as charged in the information. After his motion for new trial was overruled, he was accorded allocution, and sentenced, in accordance with the punishment theretofore assessed by the Court, to be committed to the Department of Corrections for a term of six years. He appealed to this Court, after which his trial counsel who had represented him and was present at all trial and after trial proceedings, withdrew as his counsel. He is represented here by able counsel who has filed a brief in his behalf. In his motion for new trial he makes nine assignments of error, only three of which are presented for review here, viz., (1) that the evidence was insufficient that the items allegedly stolen had a value of $50 or more, (2) that the Court erred in overruling defendant's motions to suppress evidence, and (3) that the Court erred in giving instruction No. 3. After a jury had been impaneled and sworn to try the issues, out of the hearing of the jury defendant orally moved to suppress the evidence and gave as reasons therefor that at the time of defendant's arrest and search he was a public carrier, that there was no probable cause for the arrest, ""and for that reason it is inadmissible as evidence."" At the same time defendant moved to refile a like motion which the Court file disclosed had been filed in the cause in the Court of Criminal Correction, but not refiled in the trial Court or prior thereto submitted or brought to that Court's attention. Leave was granted to refile that motion and both motions were overruled as being untimely and unseasonably filed. The transcript of the record approved by trial counsel and filed here does not contain this written motion to suppress evidence.