State v. Degraffenreid, 55211

Citation477 S.W.2d 57
Decision Date13 March 1972
Docket NumberNo. 55211,55211
PartiesSTATE of Missouri, Respondent, v. Joseph Kern DEGRAFFENREID, Appellant.
CourtUnited States State Supreme Court of Missouri

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

William C. Cockrill, Springfield, for appellant.

BARDGETT, Judge.

This case is written on reassignment. In writing this opinion, substantial portions of a prior opinion, written, but not adopted by the court, are used without employing quotation marks.

Appeal from a judgment of conviction of burglary, § 560.040, V.A.M.S., and grand stealing, §§ 560.156, 560.161, V.A.M.S., and concurrent sentences of 4 years imposed upon Joseph Kern Degraffenreid following a jury trial.

The state's evidence: While Mr. and Mrs. Hasler were away from their residence in Springfield on September 10, 1968, and at about 2:00 p.m., A. E. Gaston, a 78-year-old neighbor who lived across the street, observed three men carrying furniture out of the front door of the Hasler residence, load it into a truck and drive away. He took the license number and gave it to Mrs. Hasler after she came home and found various items missing from the house. The next day Mr. Gaston selected defendant's photograph from a number of photographs ('mugshots') shown to him by a detective and identified the photograph as the picture of one of the three men he had seen the previous afternoon. At police headquarters that same day Mr. Gaston picked defendant from a lineup conducted by the police department. At the trial Mr. Gaston testified that he got a look at all three men for 'longer than a minute'; that he had a 'full-face' view of defendant, and a side view and rear view of him while he was standing by the truck about 75--80 feet away and across the street from his house. The license number was traced to defendant, owner of the truck bearing that number, who was arrested and charged with burglary and stealing. At the trial the detective corroborated Mr. Gaston's testimony about the mug shots and the lineup.

Defendant denied participation in the burglary and stealing. He testified that he loaned the truck to one Donnie Wright on the day in question; that for half an hour before and two hours after the time the burglary was supposed to have taken place he was at Simmons Auto Body Shop in Springfield.

Citing cases for the proposition that to make a second-degree burglary case there must be evidence that there was a breaking and entering; that if the doors and windows are left open there can be no burglary, and that there must be evidence that the doors and windows were closed prior to the time the defendant entered the building, defendant contends that the evidence was insufficient to show that entry to the residence was gained by opening a closed door. The affirmative testimony of Mr. Hasler, the last to leave the residence, that he closed the door and that he would say the door was closed was qualified by statements that he could not be 'absolutely positive' but he was 'almost positive' it was closed. This testimony is sufficiently removed from the category of speculation and conjecture to constitute substantial evidence sufficient to sustain a conviction based upon a finding that the door was closed. A witness is not required to speak with such confidence as to exclude all doubts in his mind; his qualification of his testimony affects only its probative force. Leathers v. Sikeston Coca-Cola Bottling Co., Mo.App., 286 S.W.2d 393, 396(3); 30 Am.Jur.2d, Evidence § 1081, p. 228. It is for the jury to weigh the evidence given. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 323(20).

The courtroom identification of defendant is challenged on the ground that the police lineup was conducted without notice to defendant and without the presence of counsel in violation of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The lineup was conducted on September 13, three days after the crime. Before the lineup was conducted defendant signed a written paper reciting that he had been advised that he might have his lawyer or any member of his family or anyone he desired to be present while the lineup was being conducted, leaving blank the place for the names of persons requested to be present. This constituted a waiver of the point now sought to be raised. There was no objection prior to trial or at the time the witness Gaston testified relating to the identification of defendant at the lineup. The first mention of this objection was in defendant's motion for new trial. The point therefore was not preserved for appellate review. State v. Brownridge, Mo.,459 S.W.2d 317, 320(8); State v. Franklin, Mo., 448 S.W.2d 583, 584; State v. Hampton, Mo., 430 S.W.2d 160, 163.

Defendant assigns error in the refusal of defendant's offered instruction A on the burden of proof, the presumption of innocence and reasonable doubt, instead of which the court gave instruction 7. Defendant does not seek to impeach instruction 7 as an improper statement of the law, simply maintaining that his instruction A was a proper statement of the law and would have been 'fairer' to him than No. 7. Instruction 7 is the standard instruction on these subjects which has been given in criminal trials in this State for generations, and approved many times. See State v. Brown, Mo.,360 S.W.2d 618, 620. When a court has fully and properly instructed on a subject, there is no error in refusing further instructions on the subject. See numerous cases so holding collected in 9A Mo.Dig., Criminal Law, k829(1).

Defendant complains of the giving of instruction 5, the first paragraph of which instructed that 'all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting.' This paragraph is criticized on the theory that defendant loaned his truck to a person who subsequently admitted involvement in the burglary, and that this fact, having been known to the jury, could have been interpreted and could have been the basis of an inference that merely lending his truck was sufficient to convict, even though defendant was not one of the three who entered the house and loaded the furniture. No such interpretation or inference could reasonably have been made or drawn, in view of the requirement in the instruction that the jury find that defendant acted together with others in a common intent to commit a crime. Lending a truck without knowledge of its intended use would negative common intent to commit a crime by use of the truck. Paragraph 2 of the main verdict-directing instruction in State v. Reece, Mo., 324 S.W.2d 656(9), in almost identical language, was upheld as a proper definition of joint commission of a crime, against charges of generaltiy and inadequacy.

The second paragraph of instruction 5 advised the jury that '. . . when two or more persons knowingly act together in the commission of an unlawful act or purpose, then whatever any does or says in the presence and hearing of each other in furtherance of such unlawful act or purpose is in law the act and deed of each such person.' This is a correct instruction, which would not permit the jury to convict defendant for the loan of the truck without knowledge of its intended use. It requires that defendant 'knowingly' act with another or others in the commission of an umlawful act before their act is the act of the defendant.

Defendant objects to the giving of that portion of instruction 1, the main verdict-directing instruction, which submits burglarious breaking and entry of a door of the dwelling house, for the reason that the state did not prove a breaking and entry (as argued under defendant's first point). Opening of a closed and unlocked door with burglarious intent is sufficient to render an entry thus effected burglary, State v. Rhodes, Mo., 408 S.W.2d 68, 70(3), and such an opening was sufficiently proved by Mr. Hasler's testimony that the door was closed by him when he left and Mr. Gaston's testimony that three men, including defendant, were carrying furniture out of the front door.

Defendant takes exception to the admission in evidence of the testimony of police officer Bill Brew showing the circumstances surrounding the arrest of defendant three days after the crime was committed. He testified that he had been given a description of the truck, the license number and the name of the owner, and was instructed to pick up Joseph Kern Degraffenreid; that he observed this truck turning off Sunshine onto Fort; that he and officer Morton stopped the truck, checked the license, arrested defendant and advised him of his constitutional rights. That there were two other people in the truck at the time was divulaged by the prosecutor's question, 'Without naming the other two people in the truck, what else did you observe in the truck?' Defendant argues that it was highly prejudicial to permit officer Bill Brew to testify that he saw defendant 'with two other men' on this day in this particular vehicle, three days after the crime; that this had no bearing on the guilt or innocence of defendant, other than the prejudicial inference which the jury undoubtedly drew, that defendant was one of the three persons who committed the burglary, and cites authority for the proposition that the prosecution is not permitted to introduce evidence of the circumstances of the arrest of the accused where the circumstances have no probative value in establishing his guilt. The court did not err. In the first place, the officer did not testify that there were two other men in the truck with defendant on the day of the arrest. While this may have been implied in the prosecutor's question, the officer did not so testify. In the second place, there was no objection to the revelation by the prosecutor that there were two other ...

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