State v. Oertel
| Decision Date | 04 December 1919 |
| Citation | 217 S.W. 64,280 Mo. 129 |
| Parties | THE STATE v. TONY OERTEL, alias TONY ORTEL, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.
Affirmed.
Frank W. McAllister, Attorney-General, and Shrader P. Howell Assistant Attorney-General, for the State.
(1) The information, both in form and substance, fully meets all requirements. Secs. 4529, 4913, R. S. 1909; State v Moore, 121 Mo. 517; State v. Vaughan, 199 Mo. 108; State v. Collins, 266 Mo. 95; State v. Levy, 262 Mo. 181; State v. Moulton, 262 Mo. 137; State v. Payne, 223 Mo. 112; Ex parte Roberts, 166 Mo. 207. (2) The court correctly and fully instructed the jury on all questions of law necessary for their guidance in reaching a verdict under the evidence. State v. Boyd, 178 Mo. 2; State v. Levy, 262 Mo. 181. (3) The court did not err in admitting the testimony of police officers that the tools and instruments introduced in evidence were such as were usually employed by burglars. State v. Daly, 210 Mo. 677; Helfenstein v. Medart, 136 Mo. 615; State v. Mount, 79 Minn. 121; Rogers on Expert Testimony, secs. 16 and 18, pp. 39, 41; 1 Wharton's Crim. Evidence, sec. 403, note 1; State v. Harrold, 38 Mo. 496. (4) The evidence submitted on the trial is amply sufficient to establish all the elements of the crime charged and fully supports the verdict returned by the jury. State v. Vaughan, 199 Mo. 108; State v. Concelia, 250 Mo. 411.
On February 6, 1917, the Assistant Circuit Attorney of the City of St. Louis, Missouri, filed, in the Circuit Court of said city, a verified information, charging defendant with the crime of felonious possession of burglars' tools. The information, without caption and verification, reads as follows:
On February 12, 1918, defendant was formerly arraigned and entered his plea of not guilty. The trial was commenced in the above court on February 12, 1918, and resulted in a verdict being returned the following day, as follows:
"We the jury in the above entitled cause, find the defendant guilty of unlawfully having burglars' tools in his possession as charged in the information, and assess the punishment at imprisonment in the penitentiary for two years."
The evidence in behalf of the State is substantially as follows:
It appears from the testimony of Police Officer Feliz P. Katke, that at about 1 a. m. on the morning of December 30, 1916, this officer, together with Policeman Jones, was standing on Market Street about twenty-five feet east of Grand, when they observed an automobile going west on Market at a very high rate of speed, containing three or four men. Officer Jones called to the men to halt, but instead of doing so they increased the speed of the car. The two officers thereupon commandeered a nearby car and pursued the car containing the three or four men, which they over took at Grand and Hickory Streets near the front of the Armory. The officers jumped off the running board of their car and ran to the car they were pursuing, which was a large Packard, covered the chauffeur and the defendant, who was in the rear seat, with their guns, it appearing that the other two men had left the car before the officers arrived. Witness Katke, further testifying, stated that the defendant was sitting in the back seat and Officer Jones jerked the curtain open and covered him with his gun, and, upon the officer ordering him to come out, the "defendant went down to his hip pocket and throwed a gun down on the seat as he was stepping out of the car." The officers then threw their searchlight on the floor and seat, where defendant had been sitting, and found a hammer, bullets, a punch, a jimmy, an instrument used to drive out rivets on a combination, and all of which, the policeman testified, were tools and implements usually employed by burglars in plying their trade. The witness further testified that he was familiar with the tools and implements employed by burglars, and was able to testify that the hammer was used to knock off the knob of the safe, and the punch to drive out the rivets which held the tumblers to the safe, and the screw-driver and jimmy were used to pry and force doors and windows and for breaking into dwelling and warehouses. All of these instruments were identified by this witness and introduced in evidence.
On cross-examination, Officer Katke stated that, in his judgment, the car was running at the rate of twenty-five or thirty miles an hour. He also admitted that while the tools and implements were such as commonly employed by burglars, at least the flashlight and screwdriver might be used in the repair of automobiles, but the jimmy could not be so employed.
The State introduced John Shea, who was Superintendent of the Bureau of Identification, and had been connected with the Police Department of St. Louis for about nineteen years. The witness testified, that he had occasion, in the prosecution of his work as a police officer, frequently to see and examine tools and implements employed by burglars in opening safes and breaking into dwellings and warehouses, and upon being shown the implements and tools which had been taken from the car in which this defendant was riding on the night of December 30, 1916, he testified that all of them were the kind and character employed by burglars. The jimmy was used ordinarily to pull off combinations to safes, the punch to knock out the rivets so as to remove the tumblers, the screw-driver to force and pry, and the hammer and flashlight were such as were usually carried by burglars.
The State then introduced Frank McKenna, who had been a police officer in St. Louis for twenty-four years, and who testified that he had knowledge of and was familiar with the kind and character of tools employed by burglars in breaking open safes and forcing the doors and windows of dwellings, warehouses and such places. Upon being shown the instruments found in the car in which the defendant was riding on the night in question, he affirmatively testified that they were instruments used by burglars and commonly known as burglars' tools. His testimony as to the particular use of each of the instruments introduced in evidence, was substantially the same as that given by Officer Katke and Superintendent of the Bureau of Identification, John Shea.
Gustave Slingman, a deputy clerk in the criminal division of the St. Louis City Circuit Court, was called to the stand and read into the record a judgment of conviction of this defendant on March 25, 1915, on the charge of grand larceny and for which he was sentenced to serve two years in the penitentiary. In connection with this, the State then offered in evidence the record showing that this defendant had in fact been received at the State penitentiary and had served his term and had been discharged under the three-fourths law, on December 23, 1916.
The evidence in behalf of appellant is substantially as follows:
Herbert Schultz, who was called on behalf of the defendant, testified that he was in the automobile repair business, and that he had rented to the defendant, on the night of December 30, 1916, a seven-passenger Packard car. This witness testified that the flashlight and hammer, introduced in evidence, belonged to him, and that they, together with at least some of the other instruments, which are not clearly identified in the evidence, were in the car when he rented it to this defendant.
On cross-examination, the witness stated that he had but the one car on December 30, 1916. He identified the hammer as belonging to him, and said: "Well, it looks like my punch -- that is all I can say about it."
Sam Prussen, who was a fruit dealer, formerly a carpenter and had had experience in handling automobiles, testified that the hammer and screw-driver and the other tools shown to him were such as could be used by carpenters and persons other than...
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