State v. Hampton, 43619
| Decision Date | 10 January 1955 |
| Docket Number | No. 43619,43619 |
| Citation | 275 S.W.2d 356 |
| Parties | STATE of Missouri v. Charles Cletus HAMPTON. |
| Court | Missouri Supreme Court |
Cecil Block, Donald S. Siegel, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Grover C. Huston, Asst. Attys. Gen., for respondent.
Defendant was convicted of burglary in the second degree and sentenced to two years' imprisonment in the State Penitentiary. He appealed to this court. Defendant in his brief contends the evidence was insufficient to sustain a conviction and that the trial court erred in the admission of evidence. The case was submitted in Division I of this court at the January, 1954 term. Thereafter, the case was transferred to the court en banc. All of the following opinion, which we are adopting without quotation marks, with the exception of the last two paragraphs was prepared by Commissioner Coil in Division I.
The evidence tending to prove the agency of defendant was entirely circumstantial. In determining whether such evidence was sufficient, we consider as true the evidence tending to support the judgment and the favorable inferences reasonably deducible from such evidence. State v. Murphy, 356 Mo. 110, 112, 201 S.W.2d 280, 282[3, 4]. The evidence so stated tended to prove these facts.
Thirty dollars and six quarts of whiskey were taken from a tavern which was broken into between 1 and 8 a. m. on May 21, 1952. Part of the $30 was a five-dollar roll of dimes wrapped in green paper. The six quarts of whiskey had been removed from a cabinet forming a part of the back bar. When the tavern was opened at 8 a. m., two quarts of whiskey wer found on the floor behind the front bar and close to the cabinet from which the six bottles had been removed. Defendant's 'left middle' fingerprint was on one of the two bottles. This was the only identifiable fingerprint appearing on either bottle, but there were other blurred fingerprints on both. Defendant lived close to the tavern and frequented it.
The state failed to show the prior history or prior location in the tavern of the 'fingerprint' bottle. That is to say, it was not developed where this bottle was when the tavern was closed at 1 a. m., when the bottle had been received at the tavern, or where it had been in the tavern since its receipt. Fingerprint experts testified that a fingerprint would remain on a glass bottle under some circumstances for a period of from several days to three or four months. In explanation of his fingerprint having been found on the bottle (if the print was his print), defendant testified in effect that he must have put it there at some time when he was behind the bar assisting the bartender or waiting on himself.
Mike Staziak, who regularly operated the tavern for his wife, Wanda, the owner, said that defendant was not permitted behind the bar and did not go behind the bar to his knowledge; that he worked most of the time but that there had been another bartender who relieved him for short periods of time. This person did not testify. It was while this other bartender was on duty, defendant said, that he usually went behind the bar.
In the afternoon of the day of the burglary, defendant, along with others, was arrested. A search of his person disclosed a five-dollar roll of dimes wrapped in the same kind of green paper as that on the dimes which had been taken from the tavern. This wrapper was like those normally used by banks to wrap dimes.
In criminal cases where the evidence is entirely circumstantial, the circumstances relied upon must be consistent with each other and with a reasonable hypothesis of defendant's guilt, inconsistent with any reasonable hypothesis of his innocence, and inconsistent with every other reasonable hypothesis except that of guilt. State v. Murphy, supra, 201 S.W.2d 282. The question is whether the related circumstances met the requirements of that rule.
In our view, while the fact that a five-dollar roll of dimes, wrapped in the same colored paper as the missing roll, was the same day found in the possession of defendant was a circumstance admissible in evidence; nevertheless, inasmuch as there was no evidence sufficiently identifying the roll of dimes defendant had as that taken from the tavern, this circumstance was not substantial evidence inconsistent with a reasonable hypothesis of defendant's innocence.
Now the fact that the fingerprint found on the bottle was defendant's was proved by direct evidence, the weight of which was for the jury. The matter with which we are concerned and the decisive question is whether the circumstance that defendant's fingerprint was on the bottle was alone sufficient substantial evidence to sustain the conviction. The answer, we think, depends upon whether, under the evidence, the fingerprint could only have been impressed at the time of the burglary. 20 Am.Jur., Evidence, Sec. 1223, p. 1077; Wharton's Criminal Evidence, 11th Ed., Vol. 2, Sec. 933, p. 1627; Annotation, 28 A.L.R.2d 1115, 1154, Sec. 29. The state's case-inchief did not exclude a reasonable hypothesis that defendant's fingerprint was not impressed at the time of the burglary. This, because, as noted, there was no showing as to the prior location and handling of the bottle on which there was a fingerprint. The fact, alone, that defendant's fingerprint found on a bottle of whiskey in a tavern frequented by him would not constitute substantial evidence of his guilt because it does not exclude a reasonable hypothesis of his innocence. But defendant himself testified, in effect, that, if it was his fingerprint, the only way it could have gotten on the bottle was when he was behind the bar at some time prior to the burglary. In other words, the defendant's testimony located the bottle prior to the burglary, in so far as defendant was concerned, sufficiently to support the conclusion that the bottle had not been at a place in the tavern where defendant's fingerprint would have been impressed upon it unless he had been behind the bar. See State v. Richetti, 342 Mo. 1015, 1037, 119 S.W.2d 330, 341[12, 13].
We do not weigh the evidence or judge the credibility of witnesses. Those matters were for the jury. The jury could believe or disbelieve defendant's testimony that he had been behind the bar and had handled bottles. The jury could refuse to believe defendant's testimony that he had been behind the bar prior to the burglary, and, if so, the only reasonable hypothesis supportable by the directly proved fact that his fingerprint was on the bottle was that defendant was present at the time of the burglary and must, at least, have been a participant therein. We think the evidence was sufficient to show that defendant's fingerprint had to have been impressed on the bottle at the time of the burglary and that there was therefore sufficient proof to identify defendant as the guilty person to the exclusion of every other reasonable hypothesis. Cf. State v. Johnson, 351 Mo. 785, 788, 174 S.W.2d 139, 140.
State's Exhibit B was a card containing defendant's fingerprints taken by a qualified member of the police department on May 24, 1952 (three days after defendant's arrest on the instant charges). So far as the record shows, defendant made no objection to the taking of his fingerprints....
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