State v. Hohensee, 32695.
| Citation | 62 S.W.2d 436 |
| Decision Date | 24 June 1933 |
| Docket Number | No. 32695.,32695. |
| Parties | STATE v. HOHENSEE. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Greene County; John Schmook, Judge.
Victor Hohensee was convicted of burglary, and he appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and Harry G. Waltner, Jr., Asst. Atty. Gen., for the State.
The defendant and a negro boy, Val Putnam, were jointly charged by information in the circuit court of Greene county with a burglary and larceny alleged to have been committed on February 22, 1931. The property taken was 25 cents in money and an Elgin watch worth $10. After a severance, evidently, though the record does not show it, the defendant was convicted of the burglary; his punishment being fixed at imprisonment in the penitentiary for three years. He appeals but has filed no brief. The assignments of error made in the motion for new trial challenge the sufficiency of the evidence and complain of the admission and exclusion of evidence, the refusal of a continuance, and the disqualification of certain of the jurors to sit in the case.
The defendant lived across lots about 200 feet from the home of A. L. Cartwright on Pine street in Springfield. The dwelling had two rooms, one used for a kitchen and the other for a bedroom. The family of Mr. Cartwright consisted of himself, his wife, and her daughter, about 16 years old. All three were asleep in the bedroom, when, about 2 o'clock in the morning, Mrs. Cartwright was awakened by the talking and moving of two people in the house. Soon Mr. Cartwright and the daughter woke up. The burglars remained a half hour or more talking, searching, and threatening Mrs. Cartwright with a pistol in an effort to make her tell where the family money was hid. They rummaged through the drawers of a dresser and took the money and watch from Mr. Cartwright's clothes. The next morning the wooden "button" which held the kitchen door closed was found pushed off and lying on the floor, indicating the burglars had entered that way.
All the Cartwrights testified positively they had known the defendant and Putnam theretofore and that they easily recognized the burglars as being those two boys by their looks, voices, and movements, though both were masked. The Cartwrights' stories were somewhat contradictory, but only in particulars which go to the weight of the evidence. For instance, Mr. Cartwright said the defendant's mask was of cloth with holes cut in it for his eyes, nose and mouth; whereas, the mother and daughter stated the masks were handkerchiefs without holes cut in them. Also Mr. Cartwright said he blew the coal oil lamp out when he went to bed and that when the burglars woke him up the electric light in the room was burning. He had electric service but had not been using it that night. Mrs. Cartwright testified the negro boy lighted the lamp, not the electric light, and the daughter said the lamp was burning, turned low. There are other minutiæ that need not be gone into, such as a detailed description of the premises, intimations of bad feeling between the Cartwright family and the defendant's family and so on.
Early the next morning Mr. Cartwright called the witness Wyatt, master of some bloodhounds, who came with three dogs. The police, also, were notified. Apparently the police arrived first and made an inspection of the house. The Cartwrights informed them the burglars were the defendant and Putnam, and the officers went first to get Putnam. Then Mr. Wyatt gave the bloodhounds the scent by permitting them to smell in the dresser drawers that the burglars had searched. The dogs went directly to the defendant's home and smelled and scratched at a door. No one had yet arisen and nothing was done to rouse any one. About that time the police returned to the Cartwright home with the negro boy Putnam and called Mrs. Cartwright to identify him. The boy broke loose, and as he was running away the police shot him. The dogs were not put on the trail of Putnam, or, at least, never picked it up. No objection was made by defendant's counsel to the testimony about the bloodhounds. The police went to the defendant's home but did not find him there. He was located and arrested in St. Louis the following October.
The defendant's defense was an alibi. During the cross-examination of some of the police officers used by the state in making its main case, this fact was forecast by certain answers elicited from them showing the police had been looking for him on other charges for several days before the Cartwright burglary and that they had been unable to find him. The defendant testified he left Springfield on February 19 traveling on a freight train and arrived in St. Louis on the morning of February 20. He was seeking employment. He went to the home of his sister and brother-in-law, Mr. and Mrs. Weiser, where he stayed until fall. The Weisers corroborated this story, saying he was in their home each day from the morning of February 20 to February 22, and that he remained in St. Louis through the summer. The defendant's mother said the last time she saw him in Springfield before the robbery was on February 18. Ben F. Hohensee, the father of the defendant, said the latter left their home on February 17 or 18 and was away on February 21 and 22. Vernon Hohensee, a brother of the defendant, testified that on the evening of February 21 he had been to a neighborhood prayer meeting and about 10 o'clock that night went back home following a route which would take him across a corner of the Cartwright's dooryard and apparently along the course which it seems the bloodhounds followed in trailing the scent to the defendant's home. (This we take to be the purpose for which the testimony was deemed relevant.) Mrs. Mildred Swertzfeger, the defendant's sister, while she lived in another part of town, nevertheless had been at defendant's home every day between February 18 and February 21. She said that the police came looking for the defendant but didn't find him.
Impeaching Mrs. Cartwright, Mrs. Laura Meade testified that on the morning after the robbery Mrs. Cartwright told her she didn't know who the burglars were and that they had black socks pulled down over their faces. A few other facts will be stated in the course of the opinion.
Without discussion it is obvious there was enough evidence to support the verdict and judgment. We have treated assignments 1 and 2 in the motion for new trial as sufficient to raise that question, though it is very doubtful if they are. They are practically the same as those considered in State v. Moore (Mo. Sup. Div. 2) 36 S.W.(2d) 928.
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