State v. Deutschmann

• Decision Date: 12 July 1965
• Docket Number: No. 1,No. 51014,51014,1
• Citation: State v. Deutschmann, 392 S.W.2d 279 (Mo. 1965)
• Parties: STATE of Missouri, Respondent, v. Herman Charies DEUTSCHMANN, Appellant
• Court: Missouri Supreme Court

Page 279

392 S.W.2d 279

STATE of Missouri, Respondent, v. Herman Charies DEUTSCHMANN, Appellant.

No. 51014.

Supreme Court of Missouri, Division No. 1.

July 12, 1965.

Norman H. Anderson, Atty. Gen., Jefferson City, Brick P. Storts, III, Asst. Atty. Gen., for respondent.

No brief filed for appellant.

HOLMAN, Judge.

Defendant was charged with and found guilty of the offense of burglary in the second degree. Since it was alleged and proved that defendant had been convicted of a prior felony the court determined his punishment which was fixed at imprisonment in the penitentiary for a term of eight years. See Secs. 560.070, 560.095(2), and 556.280. (All statutory references are to RSMo 1959, V.A.M.S.) Defendant has appealed.

Defendant was charged with the burglary of a building occupied by Post 3060 of the V.F.W. which was located at 1043 Kienlen Avenue in Hillsdale, St. Louis County, Missouri. The evidence indicated that when the building was closed by an employee on the night of December 2, 1963, all windows and doors were closed and locked. When another employee arrived to open the building at 7 a. m. the next day he found the glass had been broken in a rear door and the hasp used in connection with a padlock thereon had been cut and the door was partly open. Upon entering the building he found that a cigarette machine had been broken into and its coin box was on the floor. The coin box of a coin-operated pool table had been removed from its usual place and was lying on the table. The employee notified the police, and the marshal of Hillsdale and also a detective from the county police arrived in a short time and made an investigation. An expert in identification searched for fingerprints and 'lifted' several latent prints from the coin box on the pool table.

Defendant was arrested on January 27, 1964, and his fingerprints were taken. Those prints were admitted in evidence as State's Exhibit 7. Defendant's fingerprints and the prints obtained from the coin box were compared by David Wendel, a detective with the identification bureau of the county police, who expressed the opinion that the print from defendant's right middle finger was identical with the one taken from the coin box. Enlarged photographs of these two prints were admitted in evidence as State's Exhibit 8.

Sergeant Glen Kirchhoff of the Bureau of Identification of the County Police Department also testified as a fingerprint expert. He stated that fingerprints develop about two months before birth and never change. He also testified as follows: 'Q. Through the development of fingerprinting and fingerprint identification, to your knowledge, are there any cases on record where two fingerprints have been found to be identical wherein those prints belong to different individuals? A. No, sir.' Sergeant Kirchhoff further testified that he had examined the print from defendant's right middle finger and the one taken from the coin box and that those prints were definitely identical.

No evidence was offered by the defendant.

Defendant has filed no brief and we will therefore consider the contentions properly raised in his motion for new trial. State v. Meller, Mo.Sup., 387 S.W.2d 515.

We will first consider the assignment that the State failed to make a submissible case. There is no question but that a burglary was proved. However, the evidence connecting defendant with the burglary is circumstantial. In that situation, the facts and circumstances relied upon by the State to establish guilt 'must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.' State v. Walker, Mo.Sup., 365 S.W.2d 597, 601. We think the evidence was sufficient to comply with the strict requirements of the quoted rule. There was evidence that defendant was not a member of Post 3060 and had never been seen in the building as a guest or customer. The coin box of the pool table was not normally placed where customers would touch it. Therefore, when a fingerprint identified as that of defendant was found on the coin box after it had obviously been handled by the burglar, such evidence was not only consistent with the hypothesis of defendant's guilt but inconsistent with any reasonable hypothesis of his innocence. We accordingly rule that the trial court properly overruled defendant's motion for a directed verdict.

Another assignment in the motion complains of the action of the court in permitting the witnesses to testify that 'the alleged fingerprint found on the scene was the fingerprint of the defendant, for the reason that the proper foundation had not been laid for the answer of the said hypothetical question.' An examination of the transcript shows that no objection was made to the testimony of the two witnesses who gave the expert testimony complained of. In that situation the alleged error is not preserved for appellate review. State v. Slaten, Mo.Sup., 252 S.W.2d 330.

Assignment No. 4 is as follows: 'The court erred in failing to take judicial notice of the fact that a juror slept during a portion of this trial. This issue is raised by the defendant at this time with the knowledge that there is nothing presently in the record showing such conduct on the part of the juror, but the defendant desires to make a record on this point, and further urges the Court that he was in a tactical position in the trial wherein it was impossible to make a record of this juror's misconduct at the time.' Defendant did not mention this matter during the trial and offered no proof of it when the motion for new trial was heard. He did offer to make proof of that fact at the time of allocution but such was denied. At that time the court stated, 'I did not know that any juror was sleeping.'

We consider the assignment to be without merit. Defendant, having failed to mention the matter during the trial or to offer proof thereof upon the hearing of the motion for new trial, has failed to preserve the alleged error for review. The offer of proof at the time of allocution came too late. Moreover, the specific complaint is that the court erred in failing to take judicial notice of the fact. The judge stated that he did not have knowledge of the alleged fact that the juror was sleeping and hence it is apparent that he could not have taken judicial notice thereof.

Defendant next contends that the court erred in admitting in evidence State's Exhibits 6, 7, and 8 for the reason that a proper foundation had not been laid for their introduction and a proper chain of custody had not been established. Exhibit 6 is the fingerprint which was taken from the coin box. Exhibit 7 is the card containing all of defendant's fingerprints. No objection was made to the admission of either of those exhibits and hence the assignment of error, made for the first time in the motion for new trial, must be denied. Exhibit 8 is an enlarged photograph of the print taken from the coin box (No. 6) and the print of defendant's right middle finger taken from Exhibit 7. When Exhibit 8 was first offered defendant objected that there had not been proof as to who took the photographs and as to how the exhibit had been prepared. Thereafter, the witness testified in detail as to the photography and manner of preparing the exhibit. When the exhibit was again offered no objection was made. In that situation it is apparent that no error occurred in admitting the exhibit in evidence.

Instruction No. 2 reads as follows: 'You are instructed that the intent with which an act is done is one of the facts for you to determine from all the evidence in this case. This intent need not be proved by direct and positive testimony, but in the absence of such testimony, it may be inferred by you from all the facts and circumstances in evidence surrounding and attending the act having reverence to and bearing upon the question of intent, if you find and believe from the evidence beyond a reasonable doubt that such facts and circumstances have been proved in this case.' Defendant contends the court erred in giving that instruction because 'the State's case was based solely on circumstantial evidence and in such a case it is improper to permit the jury to infer any necessary element of the crime, they being required to preclude any other reasonable hypothesis other than defendant's guilt.' The giving of an almost identical instruction was approved in State v. Mulconry, Mo.Sup., 270 S.W. 375. It is elementary that intent need not be proved by direct testimony but may be inferred from the facts and circumstances. State v. Smith, Mo.Sup., 357 S.W.2d 120. The court in this case properly gave an instruction on circumstantial evidence. It was also proper to give Instruction No. 2 on the question of intent. Those two instructions are not in conflict and neither diminished the effect of the other. We accordingly rule that the court did not err in giving Instruction No. 2.

Defendant also contends that the court erred in giving Instruction No. 4 which is the usual instruction on burden of proof given in most criminal cases. His complaint relates to the portion which reads, '* * * but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence.' It is said that that language 'tends to lessen the burden of proof required of the State.' The instruction here involved has been repeatedly approved by this court. The contention heretofore stated, and similar contentions, have been ruled adversely to defendant in State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; State v. Turner, Mo.Sup., 320 S.W.2d 579; and State v. Williams, Mo.Sup., 376 S.W.2d 133. This point is without merit and is disallowed.

Assignment No. 7 alleges that the court erred in giving...