State v. Miller, Cr. N

• Decision Date: 01 December 1972
• Docket Number: Cr. N
• Citation: 202 N.W.2d 673
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. David Dwight MILLER, Defendant and Appellant. o. 429.
• Court: North Dakota Supreme Court

Page 673

202 N.W.2d 673

STATE of North Dakota, Plaintiff and Respondent, v. David Dwight MILLER, Defendant and Appellant.

Cr. No. 429.

Supreme Court of North Dakota.

Dec. 1, 1972.

Syllabus by the Court

1. Where evidence against a defendant in a criminal case is circumstantial, the rule for the guidance of the trial court is that the evidence must be of a conclusive character and must exclude every reasonable hypothesis of innocence.

2. Where a case rests entirely on circumstantial evidence, the rule for the guidance of the trial court is that each fact which is essential to complete a chain of circumstances that will establish defendant's guilt must be proved beyond a reasonable doubt.

3. On appeal, in an action where the defendant has been found guilty on circumstantial evidence, the only question for the appellate court to determine is whether the evidence supports the trial court's finding of guilt.

4. For reasons stated in the opinion, the finding of guilt by the trial court is affirmed.

Helgi Johanneson, Atty. Gen., Bismarck, and Richard B. Thomas, State's Atty., Minot, for plaintiff and respondent.

Pringle & Herigstad, Minot, for defendant and appellant.

STRUTZ, Chief Justice.

The defendant was charged with the crime of burglary, and was tried to the court without a jury, jury trial having been waived. Upon being found guilty, he moved for a new trial, which motion was denied. This appeal is from the judgment of conviction and sentence, and from the order denying motion for new trial.

The record discloses that at approximately 11:40 p.m. on the second day of December 1971, two persons, husband and wife, were returning in their automobile to their home near Burlington from an evening of bowling in Minot. As they passed a business establishment known as Modern Concrete Company, they observed two persons at the front door of the company's office building. One appeared to be bending over as if he were working on the door, while the other was watching traffic. The wife, a passenger in the automobile, noticed that these two persons had long hair, which is descriptive of the defendant's hair. There was a neon sign in the front of the building, but the view which she obtained of these persons was not such that she could identify them.

Their suspicions having been aroused, the husband and wife stopped at a nearby nightclub operated by the owner of the concrete company and reported what they had seen. An employee of the owner went immediately to the concrete company's building and saw that the door was open and that the lights were on in the building and that things were scattered around inside. The glass in the door had been broken and there was no light in the neon sign in front of the building. It later developed that the neon sign had an automatic switch which turned the light off at midnight.

The employee immediately reported his findings to the sheriff's office. Two deputy sheriffs and a special agent of the North Dakota Crime Bureau arrived at the concrete company building within a very short time. They found that the glass in the front door had been broken and had fallen inside the office building. A filing cabinet had been overturned and the contents were scattered about. The inside of the office was covered by a substance similar to the residue left when chemical is sprayed from a fire extinguisher. A number of bottles of whiskey and two cases of beer, which had been Christmas gifts to the concrete company, were missing, but nothing else had been taken.

Pieces of broken glass from the door were dusted and three legible fingerprints were found, with others that were too smudged to be of any value. These prints were identified by the F.B.I. as being made by the middle three fingers of the defendant's left hand.

A lady who does the cleaning for Modern Concrete testified that she had washed the window in the door during the weekend following Thanksgiving, which in 1971 fell on Thursday, November 25. An F.B.I. agent testified that such washing would remove all fingerprints on the glass. The owner of Modern Concrete as well as the office secretary testified that they never had seen the defendant at Modern Concrete, although both admitted that there had been times when they may not have been present at the place of business during working hours.

The defendant did not take the stand, but through three witnesses offered an alibi as a defense. This alibi was to the effect that on the night in question the defendant had attended a party at which these witnesses were present, and that he had been at the party during the time when the two persons were seen at the door of Modern Concrete. No testimony was offered by the defendant to explain the presence of his fingerprints on the broken glass from the door, which admittedly had to have been placed there within four days prior to the break-in since the window had been washed during the week-end of Thanksgiving.

The State asserts that a motive for the defendant's presence at Modern Concrete on the night of the burglary was furnished by the defendant's wife, who, in attempting to explain how she knew that the party which she and her husband had attended was on the night of December 2, testified that she and her husband had had a serious quarrel at the party because the defendant wanted to use a welfare check, which had been received that day, for purchasing...