Schaffer v. State

• Decision Date: 07 September 1962
• Citation: 184 A.2d 689,55 Del. 115,5 Storey 115
• Parties: , 55 Del. 115 Charles E. SCHAFFER, Appellant, v. The STATE of Delaware, Appellee. Raymond CHALMERS, Appellant, v. The STATE of Delaware, Appellee.
• Court: Supreme Court of Delaware

Page 689

184 A.2d 689

5 Storey 115, 55 Del. 115

Charles E. SCHAFFER, Appellant, v. The STATE of Delaware, Appellee.

Raymond CHALMERS, Appellant, v. The STATE of Delaware, Appellee.

Supreme Court of Delaware.

Sept. 7, 1962.

Reargument Denied Oct. 10, 1962.

Appeals from judgments and sentences of the Superior Court of New Castle County.

David Kanner, Philadelphia, Pa., for appellant Charles E. Schaffer.

David Snellenburg, II, Wilmington, for appellant Raymond Chalmers.

W. Laird Stabler, Jr., Deputy Atty. Gen., for the State.

SOUTHERLAND, Chief Justice, and WOLCOTT, Justice, and DUFFY, Judge, sitting.

DUFFY, Judge.

Raymond Chalmers and Charles E. Schaffer were convicted of burglary in the third degree, and they appeal. The facts are these:

On Friday evening, September 30, 1960, after 7 P.M., Dr. Edwin Fluevog cashed a $175 check at the Wilmington Trust Company. The teller gave him eight new $20 bills, one $10 bill, and one $5 bill. Dr. Fluevog put the bills in his wallet. He then went to another part of the Bank and bought a bond for $75; he paid for this with three of the new $20 bills, a $10 bill, and a $5 bill.

On Saturday, October 1, Dr. Fluevog took one of the $20 bills from his wallet and put it in a box in a desk drawer in his home. He dined at a restaurant that evening and paid his check with one of the $20 bills.

On October 1, between 6:15 P.M. and 11:20 P.M., Dr. Fluevog's home was burglarized and the $20 bill was taken from the box in the desk drawer. The home had been ransacked after entrance was made through an open window protected by a screen. Grass trimmings were found on the floor. Dr. Fluevog had cut his lawn earlier in the day.

On October 2, at about 12:20 A.M., police officers saw Chalmers and Schaffer walking on Marsh Road about two miles from Dr. Fluevog's house. Both were dressed in black, their trousers were wet to the knees and grass and particles of mud were on the cuffs. Neither man had a wallet or identification data.

Chalmers and Schaffer were taken to the police station and there questioned at about 1 A.M. Schaffer was asked to empty his pockets. He did so and produced, among other things, a new $20 bill. All items were returned to him. At about 2:40 A.M., he was again asked to produce the $20 bill. He did so. At that time both defendants were arrested and charged with the burglary.

In these appeals defendants make three arguments, which we consider seriatim.

(1) Defendants first contend that the State did not prove that the $20 bill which Schaffer produced at the police station was the same bill taken from Dr. Fluevog's home. The State tacitly concedes that its case against defendants depends upon proof of this connection. And, as the trial judge stated in his instructions to the jury, the State's evidence on this point is wholly circumstantial.

Circumstantial evidence, to establish a fact in issue, must be inconsistent with any other rational conclusion. Holland v. State, 9 Terry 559, 107 A.2d 920 (1954). Let us test the evidence here by this principle, which has been repeatedly applied by our courts.

Miss Elizabeth Bowman, the teller who cashed Dr. Fluevog's check, testified that all bills are numbered and that all new money runs in series. Dr. Fluevog asked her for new $20 bills. Following her usual practice, she determined by reference to the serial numbers the appropriate number of such bills to be removed from a package of new money. She then removed these bills from the package, counted all of the money and handed it to Dr. Fluevog. While Miss Bowman's testimony as to the countdown on the $20 bills was general, it reflected 'an invariable regularity of action, a fixed and constant procedure' and was therefore admissible, Pennsylvania Co., etc. v. Philadelphia Electric Co., 331 Pa. 125, 200 A. 18; Wigmore on Evidence (3d ed.) § 92; and, coupled with Dr. Fluevog's testimony, it provides a basis for concluding that the eight $20 bills received by him were numbered in series.

Dr. Fluevog put the bills in his wallet. Following his habit, he took $20 bills from the front, or 'top', of such bills in his wallet as he used them. After the burglary, $20 bills with the following numbers remained in Dr. Fluevog's wallet: C 270 42769 A, C 270 42770 A, and C 270 42771 A. A $20 bill with the following number was received during the evening of October 1 by the restaurant in which Dr. Fluevog dined that night: C 270 42772 A. The $20 bill produced by Schaffer on the morning of October 2 had the following number: C 270 42773 A.

The evidence directly establishes that the bills were in series and that Dr. Fluevog took them from his wallet in order as he used them. It also establishes that bills bearing the numbers C 270 42771 A, C 270 42770 A, and C 270 42669 A were at one 'end' of the series. And the number of the bill given to the restaurant, C 270 42772 A, indicates the direction of the other end of the numbered series, i. e., up.

Since there were eight bills involved, the irresistible conclusion is that the three bills at the other end of the series were numbered C 270 42774 A, C 270 42775 A, and C 270 42776 A. This leaves for accounting only C 270 42773 A, and that was the number of the bill Schaffer had.

This analysis is confirmed by the testimony as to the methodical way in which Dr. Fluevog removed the bills from his wallet: first, in turn, were the bills used to by the bond, then came the bill placed in the box, and, finally, the bill used to pay the restaurant. The three unused bills were in his wallet after the burglary.

To summarize: The fact in issue is the number of the $20 bill Dr. Fluevog put in the box in his home. The only rational inference from the State's evidence, or at least the jury could so conclude, is that the bill was numbered C 270 42773 A. This was the bill found on Schaffer the night of the burglary. And possession of recently stolen property, coupled with proof of the corpus delicti, is sufficient to sustain the conviction. State v. Edell, 7 W.W.Harr. 404, 183 A. 630.

We also note that the grass and mud on the clothing of defendants, the circumstances under which defendants were found by police, and their conflicting statements to the police all tend to corroborate the jury's verdicts.

(2) Defendants next contend that the trial judge erred in denying a motion for a mistrial upon testimony given by a police officer as a State's witness. The following occurred on cross-examination:

'The Court: Will you put the question over again, please.

'Q. Didn't Schaffer, because you had asked him whether he committed this burglary, tell you, 'No', and then tell you where he started out from up until the time he had been picked up, describing the car and the front seat, etc.?

'A. Yes, sir.

'Q. Was that question practically admitting this entire thing?

'A. He said that he didn't want to talk about any burglary. I asked him whether he had been involved in any other crimes in the past, which I will not bring out at this point.'

The motion was based upon the last sentence quoted above.

In denying the motion, the trial judge interpreted this language as meaning that Schaffer was questioned about other crimes without any implication that he was involved in them. The Court so stated to the jury and also explicitly instructed the jury that it was not to draw any inferences from the officer's answer.

Quite clearly, the answer was not responsive to the question and should not have been given. The trial judge's comment, however, put the testimony into proper perspective and cured the error. Compare Miller v. State, 11 Terry 579, 137 A.2d 388. As to the objection based upon the language that the Court used in its instruction, we note that no objection to this was made at the time the instruction was given. And, in any event, we conclude that the language did not 'accentuate' the matter, as defendants contend.

(3) Defendants also contend that the $20 bill in question was illegally seized because it was taken from Schaffer after expiration of the two-hour detention period provided for in 11 Del.C. § 1902. The statute, in effect, authorizes a detention for a maximum of two hours and directs that at the end of 'the detention the person so detained shall be released or be arrested and charged with a crime'.

According to the testimony of one of the police officers, they first observed Chalmers and Schaffer 'at approximately twenty minutes after twelve' and, after some questioning, decided to take them to Route 13, a main road leading in the direction of Norfolk, Virginia, the place which Chalmers and Schaffer gave as their destination. Upon finding that they were without wallets or identification, the officers decided to take them to the police station; this decision was made 'after twelve-thirty'...