State v. Oertel

Citation217 S.W. 64,280 Mo. 129
Decision Date04 December 1919
Docket NumberNo. 21533.,21533.
PartiesSTATE v. OERTEL.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Tony Oertel, alias Tony Ortel, was convicted of having felonious possession of burglar's tools, and he appeals. Affirmed.

On February 6, 1917, the assistant circuit attorney of the city of St. Louis, Mo., filed, in the circuit court of said city, a verified information, charging defendant with the crime of felonious possession of burglars' tools. The information, without caption and verification reads as follows:

"Wm. S. Connor, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis on behalf of the state of Missouri, upon am official oath, information makes as follow:: That Tony Oertel, alias Tony Ortel, on the 24th day of March, in the year of our Lord 1915, at the city of St. Louis aforesaid, in the circuit court, city of St. Louis, was duly convicted on his own confession of the offense of grand larceny, and in accordance with said conviction was duly sentenced by said court to an imprisonment in the penitentiary of the said state of Missouri for the term of 2 years, and was duly imprisoned in said penitentiary of the state of Missouri in accordance with said sentence, and that the said Tony Oertel, alias Tony Ortel, was duly discharged from said penitentiary of the state of Missouri after and upon lawful compliance with said sentence; and that the said Tony Oertel, alias Tony Ortel, after the said discharge of said Tony Oertel, alias Tony Ortel, from said penitentiary of the state of Missouri, to wit, on the 30th day of December, in the year of our Lord 1916, at the city of St. Louis aforesaid, did then and there unlawfully and feloniously have in his custody two punches, one piece of iron, of the length of about two feet and of the weight of about three pounds, curved at the end, commonly known as a gooseneck 'come-along.' 1 screwdriver, 1 hammer, and one flashlight, said instruments being then and there material, implements, and mechanical devices, adapted, designed, and commonly used for breaking into a warehouse, store, shop, office, and dwelling house, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Wm. S. Connor, Assistant Circuit Attorney."

On February 12, 1918, defendant was formerly arraigned and entered his plea of not guilty. "

The trial was commenced in above court on February 12, 1918, and resulted in a verdict being returned the following day, as follows:

"We, the jury in the above-entitled cause, find the defendant guilty of unlawfully having burglars' tools in his possession, as charged in the information, and assess the punishment at imprisonment in the penitentiary for two years.

                               "Frank A. Meyer, Foreman."
                

State's Evidence.

The evidence in behalf of the state is substantially as follows:

It appears from the testimony of Police Officer Feliz P. Katke that at about 1 a. m. on the morning of December 30, 1916, this officer, together with Policeman Jones, was standing on Market street about 25 feet east of Grand, when they observed an automobile going west on Market at a very high rate of speed, containing three or four men. Officer Jones called to the men to halt, but instead of doing so they increased the speed of the car. The two officers thereupon commandeered a nearby car, and pursued the car containing the three or four men, which they overtook at Grand and Hickory streets near the front of the Armory. The officers jumped off the running board of their car, and ran to the car they were pursuing, which was a large Packard, covered the chauffeur and the defendant, who was in the rear seat, with their guns, it appearing that the other two men had left the car before the officers arrived. Witness Katke, further testifying, stated that the defendant was sitting in the back seat, and Officer Jones jerked the curtain open and covered him with his gun, and upon the officer ordering him to come out the "defendant went down to his hip pocket and throwed a gun down on the seat as he was stepping out of the car." The officers then threw their searchlight on the floor and seat, where defendant had been sitting; and found a hammer, bullets, a punch, a jimmy, an instrument used to drive out rivets on a combination, and all of which the policeman testified were tools and implements usually employed by burglars in plying their trade. The witness further testified that he was familiar with the tools and implements employed by burglars, and was able to testify that the hammer was used to knock off the knob of the safe, and the punch to drive out the rivets which held the tumblers to the safe, and the screwdriver and jimmy were used to pry and force doors and windows and for breaking into dwellings and warehouses. All of these instruments were identified by this witness and introduced in evidence.

On cross-examination, Officer Katke stated that, in his judgment, the car was running at the rate of 25 or 30 miles an hour. He also admitted that while the tools and implements were such as commonly employed by burglars, at least the flashlight and screwdriver might be used in the repair of automobiles, but the jimmy could not be so employed.

The state introduced John Shea, who was superintendent of the bureau of identification, and had been connected with the police department of St. Louis for about 19 years. The witness testified that he had occasion, in the prosecution of his work as a police officer, frequently to see and examine tools and implements employed by burglars in opening safes and breaking into dwellings and warehouses, and upon being shown the implements and tools which had been taken from the car in which this defendant was riding on the night of December 30, 1916, he testified that all of them were the kind and character as employed by burglars. The jimmy was used ordinarily to pull off combinations to safes, the punch to knock out the rivets so as to remove the tumblers, the screwdriver to force and pry, and that the hammer and flashlight were such as were usually carried by burglars.

The state then introduced Frank McKenna, who had been a police officer in St. Louis for 24 years, and who testified that he had knowledge of and was familiar with the kind and character of tools employed by burglars in breaking open safes and forcing the doors and windows of dwellings and warehouses and such places. Upon being shown the instruments found in the car in which the defendant was riding on the night in question, he affirmatively testified that they were instruments used by burglars and commonly known as burglars' tools. His testimony as to the particular use of each of the instruments introduced in evidence was substantially the same as that given by Officer Katke and Superintendent of the Bureau of Identification John Shea.

Gustave Slingman, a deputy clerk in the criminal division of the St. Louis city circuit court, was called to the stand, and read into the record a judgment of conviction of this defendant on March 25, 1915, on the charge Of grand larceny, and for which he was sentenced to serve 2 years in the penitentiary. In connection with this the state then offered in evidence the record showing that this defendant had in fact been received at the state penitentiary and had served his term and had been discharged under the three-fourths law, on December 23, 1916.

Defendant's Evidence.

The evidence in behalf of appellant is substantially as follows:

Herbert Schultz, who was called on behalf of the defendant, testified that he was in the automobile repair business, and that he had rented to the defendant, on the night of December 30, 1916, a seven-passenger Packard car. This witness testified that the flashlight and hammer, introduced in evidence, belonged to him, and that they, together with at least some of the other instruments, which are not clearly identified in the evidence, were in the car when he rented it to this defendant.

On cross-examination, the witness stated that he had but the one car on December 30, 1916. He identified the hammer as belonging to him and said: "Well, it looks like my punch—that is all I can say about it."

Sam Prussen, who was a fruit dealer, formerly a carpenter and had had experience in handling automobiles, testified that the hammer and screwdriver and the other tools shown to him were such as could be used by carpenters and persons other than burglars.

On cross-examination he stated that he had known the defendant about 9 mouths, and that he had signed the bond of the defendant in a former case which was in the courts about 9 or 12 months prior to the instant case.

The defendant, Tony Ortel, took the witness stand in his own behalf, and, after admitting...

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