State v. McCreary

HANSON, Judge

(dissenting)

The loaded pistol was found in the possession of defendants immediately after the commission of the crime of burglary. The weapon is not the fruit of an unlawful search and seizure. It was found by the officers while conducting a lawful search and seizure following arrest. In my opinion this weapon was relevant and admissible in evidence. For that reason I am unable to concur in the reversal of the judgments of conviction against the defendants, George McCreary and Malcolm Morrison.

*129 "Ordinarily, evidence of the arrest of the accused, and of the attending circumstances, is relevant and admissible where such circumstances logically tend to connect accused with the perpetration of the crime, and testimony as to an incident which was part and parcel of the res gestae of the arrest may be relevant. It may be relevant to introduce testimony as to the place, time * * * and the property found in his possession." 22A C.J.S. Criminal Law § 628, pp. 472, 473.

More specifically it is written in 22A C.J.S. Criminal Law § 611, p. 418 that:

"Evidence is relevant to show that the accused owned, possessed, or had access to any articles with which the crime was or might have been committed."

Likewise see I Wigmore on Evidence § 83, p. 512, wherein it is stated that "the likelihood of a person doing or not doing an act in question * * * his possession (or lack) of the appropriate means or tools, are usually of sufficient probative value to be admissible."

As applied to the facts in this case the following statement appearing in Vol. II, Wigmore on Evidence, § 238, p. 33, is particularly applicable:

"The kinds of conduct which may evidence a design are innumerable in their variety. Any act, which under the circumstances and according to experience as naturally interpreted and applied would indicate a probable design, is relevant and admissible. It is true that the design indicated may be too indefinite to be itself relevant as evidence of an act (ante, § 106); but this does not affect the relevancy of the conduct to evidence that design.

"Most evidence of this sort needs no judicial ruling to determine its relevancy, and the precedents deal with only a limited number of the possible uses of such evidence. The discretion of the trial Court should control *130 in all these cases; it is impossible to lay down any general rule that will be definite enough to serve as a solution for each instance; and it is poor policy to attempt in a Supreme Court to" pass upon the probative value of each given piece of conduct.

"Any attempt to reconcile all the rulings is hopeless; there is no reason why they should be treated as binding precedents. The question is always one of experience and common sense in each case. T-he general judicial attitude is shown in the following passage:

”1878, BREWER, J., in State v. Adams, 20 Kan. [311] 320 (burglary; the four defendants held a meeting to arrange for the crime; a bar of iron and a pair of pincers were alone necessary, and these the defendant brought; the facts were admitted of the defendant having taken a carpenter's brace from a store and hidden it; a third person removed it, and the defendant never used it); 'Would not the act be one tending to show preparation, — a preparation made fruitless by the unexpected act of another? Could it not be shown that the one charged with homicide immediately prior thereto was providing himself with several weapons, though one only was used? * * * If one weapon he stole, another he borrowed, and one (his own) he put in order, would proof as to the first be incompetent while evidence as to the others was admissible? * * * If no act or conduct of the defendant could be shown unless the motive therefor or the connection between it and the crime were made indisputably clear, the range of inquiry would be limited and narrow. It is enough that the act has an apparent or probable connection with the crime, and then the motive of the defendant and the weight of it as testimony are to be considered by the jury. * * * Must it be affirmatively shown that each weapon was procured with reference to the homicide before evidence concerning its procurement is competent? Or are the facts concerning all to be put in evidence, leaving their weight to be determined by the jury?'; and the latter is approved.

*131 "The acquisition or possession of instruments, tools, or other means of doing the act, is admissible as a significant circumstance; the possession signifies a probable design to use; the instruments need not be such as are entirely appropriate, nor such as were actually put to use."

Our sister state of North Dakota decided a similar question in the case of State v. Campbell, 7 N.D. 58 , 72 N.W. 935 , in which the defendant was charged with and convicted of the crime of burglary of a combination store and residence. The owner of the store heard a noise at night and caught a view of some retreating figure. There was snow on the ground and a posse following the tracks found defendant under the driveway of an elevator in the next town. On his person, when arrested, were cartridges, a chisel and a punch. The day after defendant's arrest a revolver was found under the driveway where he had been hiding. There was also another punch found outside the burglarized store and a brace, two drills and a file were found inside the store. The tools were identified as tools taken from a blacksmith shop in the town of Leonard. Defendant objected to the introduction of the tools and the revolver, but they were admitted into evidence by the trial court. The Supreme Court of North Dakota said:

"The chisel found in defendant's possession when arrested, and the punch found on the sill of the driveway, within reach of which the defendant was found when arrested, were, in our opinion, proper evidence to go to the jury under the circumstances we have detailed, as tending to show defendant's connection with the commission of the crime. The chisel might have been used in prying open the outside door of the store, and the punch might have been used in producing the indentations which were found to have been made upon the inner door of the safe. Whether these articles were so used or not was a question for the jury to consider, in connection with the testimony offered by the defendant whereby he seeks to account for his possession of the chisel."

*132 With reference to the revolver which was found the day after defendant's arrest, the Court went on to say:

"This revolver belonged to the defendant, and was found under the driveway on a sill, and near where he was when arrested. Under these circumstances we think the jury were properly allowed to consider all the facts connected with the exhibits put in evidence, and where they were found, as bearing on the question of defendant's connection with the crime."

See Lipscomb v. State, 162 Neb. 417 , 76 N.W.2d 399 ; People v. Gambino, 12 Ill.2d 29 , 145 N.E.2d 42 ; People v. Mason, 65 Cal. App.2d 5 , 149 P.2d 742 .

Fortunately for the attendant at the laundromat and the arresting officers the loaded gun which defendants brought with them to the scene of the crime was not used either to commit the offense or to accomplish their getaway. However, 'this weapon might have been so used and was relevant and admissible.

The F.B.I. evidence showing obliteration of the serial numbers on the revolver constituted nothing more than harmless error. It added nothing. The jurors by their own inspection could observe that the serial numbers had been obliterated. If evidence is otherwise competent, it is not rendered inadmissible merely because it might possibly show defendant guilty of another crime. The crime defendants claim jeopardized their rights (U.S.C.A. Title 26, § 5843) did not apply to pistols and revolvers.