State v. Burley., 3713.
| Citation | 57 A.2d 618 |
| Decision Date | 02 March 1948 |
| Docket Number | No. 3713.,3713. |
| Parties | STATE v. BURLEY. |
| Court | Supreme Court of New Hampshire |
Transferred from Superior Court, Strafford County; Wescott, Judge.
Francis Burley was indicted for breaking and entering a store in the nighttime with intent to commit a larceny. Trial by jury and verdict of guilty, and case transferred on exceptions reserved to defendant raising questions of law.
Exceptions overruled.
Indictment, for breaking and entering a store in the nighttime with intent to commit larceny in violation of R. L. c. 453, § 2. The date and the place of the alleged crime were the night of May 2, 1947, at No. 91 Main Street in Dover. Trial by jury with a view and verdict of guilty. At the close of the State's evidence the defendant moved for a directed verdict of not guilty. This motion was denied subject to exception. The defendant then rested without introducing any evidence. Other exceptions were taken by the defendant but were waived in the Supreme Court.
The questions of law raised by the said exceptions were reserved and transferred by Wescott, J.
Frank W. Peyser, Co. Sol., of Rochester, for this State.
Robert J. Doyle and John McLaughlin, both of Mashua (Robert J. Doyle, of Mashua, orally), for defendant.
It is not disputed that the State established the corpus delicti, the basic facts necessary to prove the commission of the crime charged. The defendant does insist that it was not proven beyond a reasonable doubt that he was the or an offender.
It was shown that the defendant had the opportunity. He lived at No. 1 Main Street. He was seen in the Ramble Inn between the hours of two and three o'clock A.M. on the night of the crime. This diner is located on the Square in Dover.
On cross-examination counsel for the defense emphasized the limited size of the cellar window of entry and the difficulty of making an entry through it. It appeared in evidence that the defendant was a professional boxer. The jury saw both him and the premises and could well decide whether he had the physical ability to effect the entry.
The State sought to establish defendant's guilt by identifying human fecal matter that was found on the insteps of both of his rubbers which lay beside the bed where he slept at his home the morning after the crime with such matter smeared and tracked over the cellar floor of the store and bearing the imprint of a rubber. The State's expert, a lieutenant of the State Police, testified that the markings or striations in the imprint on the floor were consistent with those on the rubber. State v. Burch, 195 Iowa 427, 192 N.W. 287, 31 A.L.R. 204. Cross-examination of the two samples of matter from the rubbers and the floor showed them to be alike in consistency, color and odor. Miscroscopic analyses established identity of content of certain undigested materials as follows: (1) Partially digested meat fibers with some of the connective tissue and surrounding envelope material; (2) vegetable tissue, consistent with the leaves of lettuce, cabbage or other leafy vegetables; and (3) particles of fruit hull or skin. The expert concluded that it was probable that the two samples came from the same person and that there was only a slim possibility that they came from different persons.
The State also introduced evidence of consciousness...
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