State v. Miller

• Decision Date: 08 October 1962
• Docket Number: No. 2,No. 49203,49203,2
• Citation: 360 S.W.2d 633
• Parties: STATE of Missouri, Respondent, v. Earl MILLER, Appellant
• Court: Missouri Supreme Court

Page 633

360 S.W.2d 633

STATE of Missouri, Respondent, v. Earl MILLER, Appellant.

No. 49203.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1962.

Thomas F. Eagleton, Atty. Gen., Margaret Bush Wilson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

BOHLING, Commissioner.

Earl Miller was convicted of burglary and stealing under the habitual criminal act and sentenced to imprisonment for four years on each charge, said sentences to run consecutively. Consult Secs. 560.045, 560.156, and 560.110. (Statutory references are to RSMo 1959, V.A.M.S.) He has appealed but has filed no brief. His motion for new trial is for consideration. An assignment questions the submissibility of the State's case.

Earl Kuehner and his mother left their home at 4661 Adkins Street, St. Louis, Missouri, about 8:00 p. m. March 17, 1961, leaving the doors and windows locked. Arriving home about 12:50 a. m. March 18, they found the glass in the rear door broken and the door open. The front door was also open. The things in his and his mother's rooms were disarranged. His mother's chifforobe had been searched. A metal box (introduced in evidence as State's Exhibit 2) with papers in it had been taken from the desk in his room and left open on his bed. He had four American Express Traveler's Checks, total value $80, in a wallet in his desk. The wallet was left open on his bed, but the checks were missing. He had been required to place his signature on these checks when he purchased them at the bank. Kuehner testified that his collection of coins, valued at $50, a Springfield rifle, value $35, a Winchester rifle, value not stated, a pistol, value $10, his four American Express Traveler's Checks, and his grandmother's golden wedding band had been taken.

The police were notified of the burglary and about an hour later Officer Fred Henke lifted three latent fingerprints from State's Exhibit 2, the metal box, which was still on the bed, onto a tape (State's Exhibit 3). He gave this tape to Officer Gerald Hart on March 22nd, when he next saw him. Several days later Officer Robert Kaelin got the metal box (State's Exhibit 2) from Kuehner and delivered it to Officer Hart.

Harold Sellers was in charge of a service station in East St. Louis, Illinois, between 11:00 p. m. and 7:00 a. m. On the night of March 20, 1961, defendant, in payment for some gas and oil purchased, tendered to Sellers a $20 American Express Traveler's Check (State's Exhibit 1) on which the name of the purchaser had been written over and was illegible. Defendant being unable to identify himself to Sellers' satisfaction and failing to pay, witness called the East St. Louis police. Officer Jerry Sullivan and his partner answered Sellers' call. Sellers gave them State's Exhibit 1 and they took defendant and said exhibit to the East St. Louis Police Station. The following morning defendant was turned over to the St. Louis Police.

Witness Kuehner identified State's Exhibit 1 by his signature and by the number on it as one of the American Express Traveler's Checks taken from his wallet the night of the burglary.

Officer Gerald Hart, whose qualifications as a fingerprint expert were not questioned, testified he took a set of ink impressions of defendant's fingerprints, State's Exhibit 4; that he processed the latent fingerprints (State's Exhibit 3) from State's Exhibit 2, the metal box, and that defendant's right middle and ring finger made the prints on State's Exhibit 4 and on Kuehner's metal box. This witness explained why and gave his opinion that it was impossible for different persons to have the same fingerprints.

We have not developed all facts favorable to the State.

The case was for the jury.

'A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.' Supreme Court Rule 27.20(a), V.A.M.R. Consult Sec. 547.030.

Assignments in defendant's motion for new trial that the verdict and judgment 'are against the weight of the evidence'; 'against the greater weight of the evidence'; 'against the concrete and substantial evidence,' and that the verdict 'is the result of bias and prejudice on the part of the jury' are insufficient to preserve any issue for review. State v. Schramm, Mo., 275 S.W.2d 343[1, 2]; State v. Russell, Mo., 324 S.W.2d 727; State v. Fields, Mo., 293 S.W.2d 952.

Defendant's motion for new trial assigns error 'in admitting into evidence the State's exhibits for the reason that they had' not been properly identified; that the proper foundation had not been laid for their introduction, and that in each instance it was hearsay and in violation of the constitutional rights of the defendant; and in another assignment that error was committed 'in not declaring a mistrial when the policeman testified that the defendant had been arrested for another crime' for the reason this was proof of another crime, put the character of defendant in issue and was immaterial and irrelevant as to the issues of this case, and that said statements were only to bias and prejudice the rights of this defendant. Twelve exhibits were introduced in evidence by the State, and seven policemen testified on behalf of the State. The provisions of Rule 27.20 are mandatory. State v. Tourville, Mo., 295 S.W.2d 1, 4. One purpose of Rule 27.20 is to narrow the issues on appeal and state in separate paragraphs of a motion for new trial, in detail and with particularity, the same as points are to be presented in a brief, the issues having real merit in an intelligent manner and to avoid questions devoid of merit. Said assignments are too indefinite and do not comply with said Rule 27.20. State v. Thompson, Mo., 299 S.W.2d 468, 471(b); State v. Thorpe, 359 Mo. 796, 223 S.W.2d 479, 480. 'Neither this court nor the trial court is required to read the record and speculate what particular instance (or why it constituted prejudicial error) defendant had in mind as falling within a stated conclusion in a motion for new trial or in a brief.' State v. Brookshire, Mo., 353 S.W.2d 681, 685. State v. Gregory, 344 Mo. 525, 127 S.W.2d 408; State v. Linders, Mo., 224 S.W.2d 386, 389.

The transcript before us discloses that the State's exhibits, some of which are mentioned supra, were properly identified by the State's witnesses and a proper foundation for their admission in evidence was laid before they were admitted. For instance, defendant attempted to have witness Sellers cash one of the American...