State v. Myers , 351 Mo. 332 ( 1943 )

I concur in the principal opinion but desire to add a few words on the ruling made therein that the trial court properly excluded the appellant's cloth gloves from evidence because the proof was insufficient even prima facie to show they were in the same condition when later tested by a chemist as when they were taken from the appellant. There was good reason for thinking nitroglycerin had been used in blowing up the bank safe. No fingerprints were found on it, indicating the burglar had either worn gloves or had wiped his finger prints from it. The gloves were taken from the appellant soon after his arrest the next day. They had spots on them at the left index finger and in the palm of the hand. The chemist who afterward examined them said (though rather vaguely) that he tested the spots for nitrate and the reaction was positive. He stated nitrate is an element of nitroglycerine. So the gloves were an important link in the State's chain of circumstantial evidence.

[6] The principal opinion concedes the proof was sufficient to identify the gloves as the ones taken from the appellant, but holds the evidence was insufficient to show they were in thesame condition when tested as when taken from him. I agree to that, but not on the grounds principally urged below as reasons for their exclusion — namely, that it had not been shown who and how many people had had custody of them until they reached the chemist. Highway patrolman Walker was the officer who took the gloves from the appellant when he was arrested. He testified he noticed at the time they "had those spots on them." When they were exhibited to him at the trial he said they were "in the same condition." This, in my opinion, was enough to show they were in the same condition so far as pertains to anything he, or any non-expert, could ascertain visually. State v. Shawley,334 Mo. 352, 372(7), 67 S.W.2d 74, 84(18).

There are a large number of cases in Missouri where clothes or instruments with blood spots on them have been admitted in evidence. But I have been able to find only one, State v. Ilgenfritz, 263 Mo. 615, 628, 173 S.W. 1041, 1044, Ann. Cas. 1917C, 366, where such an article was excluded for failure to prove its identity by tracing its custody and showing it had not been interfered with purposely or otherwise. That case has not been cited since on that point. On the other hand later cases state the contrary. Thus, in State v. Smith (Mo. Div. 2), 222 S.W. 455, 458(5), 459(6), which is the decision cited in the principal opinion, the question was whether a human stomach which had been analyzed for poison was in the same condition when tested as when taken from the corpse. The decision said:

"it was necessary to satisfy the court of the identity of the stomach examined with that of Hutsell and that it was in the same condition when examined as when removed from his body. It was not necessary that it should have been hermetically sealed so as to be inaccessible to anybody; it was not necessary to show there was an entire absence of opportunity for anybody to tamper with it; it was only necessary to show the circumstances were such as to establish a reasonable assurance that it was the same and in the same condition. . . .

"The viscera of the deceased in this case were not preserved with that care which should characterize the conduct of an officer in such a case, and the glass jar containing the stomach was carted around in a careless sort of way; but there was no time when anything occurred to suggest a suspicion that the stomach was molested or that any one who might be interested in tampering with it knew that the prosecuting attorney had the jar in his possession when he drove to Mountain Grove and to Norwood. We think the court did not err in admitting the evidence."

In another stomach analysis case, State v. Everhart,316 Mo. 195, 203, 289 S.W. 604, 608, which was reversed and remanded for other reasons, an objection had been made to the sufficiency of the evidence to prove the stomach examined by Dr. B. was in fact the stomach of the deceased. The opinion observed that objection could be obviated on a retrial, but added (we abbreviate the[952] surnames): "However, we are not prepared to say that the present proof was insufficient. The proof apparently satisfies the test laid down in State v. Smith (the case just quoted above). The testimony of Dr. H., connecting the stomach shipped to him by Dr. J. with the one examined by Dr. B. would remove all possibility of doubt that they were one and the same stomach." And it is obvious that a human stomach would be much harder to identify than a pair of gloves with spots on them.

The general rule stated in 16 C.J., secs. 1222, 1225, pp. 618, 619, and 22 C.J.S., sec. 712, p. 1207, and followed in State v. Richetti, 342 Mo. 1015, 1033, 119 S.W.2d 330, 339(9), is as follows:

"Articles which are shown by the evidence to be connected with the crime, or which serve to unfold or explain it, may be exhibited in evidence, provided they are properly identified, and provided it is shown that there has been no such substantial change in the articles exhibited as to render the evidence misleading."

"The weapons, bullets, tools, instruments, or other articles which appear from other evidence to have been employed in the commission of the crime are admissible in evidence, even though the act is admitted and insanity is set up as a defense. To warrant the admission in evidence of an instrument or weapon as the one with which the crime was committed, a prima facie showing of identity and connection with the crime is necessary and sufficient; clear, certain, and positive proof is not required. The fact that a considerable length of time elapsed after the crime before the weapon or instrument was found, or that in the meantime third persons may have access thereto, goes to the probative force but not the admissibility of the evidence."

But granting the foregoing evidence was prima facie sufficient to show the spots on the gloves were in the same condition at the trial as when they were taken from appellant — so far as a layman could determine visually — it does not follow that they were chemically the same. So far as human interference was concerned, perhaps they may have been, and the patrolman's answer that the gloves were in the same condition may have covered that point. But there is no showing that chemical evidences of nitroglycerine would have remained on the gloves merely placed in an envelope, from the time of appellant's arrest to the time of the test (the date of which was not shown). That question was raised in one of the appellant's objections to the introduction of the gloves, when the patrolman was asked whether the gloves were in the same condition as when taken from appellant. Notwithstanding the objection the State made no effort to show by the chemist what kind of test he made, or how long definite chemical traces of the substance would remain on such materials. With that question raised and the other proof on the point so fragmentary, I agree the prima facie showing was insufficient.