# State v. Degraffenreid

> Supreme Court of Missouri · March 13, 1972 · 477 S.W.2d 57

URL: https://www.frixlaw.com/law-library/cases/9766423

## Case

- **Full name:** STATE of Missouri, Respondent, v. Joseph Kern DEGRAFFENREID, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** March 13, 1972
- **Citations:** 477 S.W.2d 57; 1972 Mo. LEXIS 1070
- **Precedential status:** Published
- **Opinion:** Concurrence by Finch
- **Judges:** Bardgett, Henley, Finch, Donnelly, Seiler, Bard-Gett, Weier, Holman, Morgan
- **Cited by:** 202 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by State v. Wade, 1996 Mo. App. LEXIS 713 (1996).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766423

## Opinion text

FINCH, Chief Justice
(concurring).
I concur in the principal opinion but have concluded it is desirable to file this explanatory statement:
Judge HOLMAN’s dissenting opinion concludes that the principal opinion inferentially overrules most or all of the Missouri cases holding that the admission of cumulative evidence is harmless where the fact thereby sought to be proved is fully and properly proved by other testimony. I do not believe it is subject to that construction. Actually, it recognizes that the admission of cumulative evidence may in some cases be harmless error and then finds that Officer Smith’s testimony was not harmless. In so ruling, the opinion, as I understand it, states that the fact that evidence is cumulative does not automatically make its admission harmless. I agree with that viewpoint. Actually, each case must be examined to determine whether the particular cumulative evidence admitted therein was harmless and hence not prejudicial, even though erroneous.
If we were dealing with a situation wherein several eyewitnesses had positively identified the defendant as a participant in the burglary and the state had offered Officer Smith to confirm that Mr. Gaston had identified photographs of defendant and had picked him out in a lineup, we might well conclude that such evidence, even though erroneously admitted, did not operate to the prejudice of defendant and was harmless. Here, however, we have a case wherein Mr. Gaston, who was 78 years of age, was the sole person who identified defendant as being one of the men who was seen removing furniture from the Has-ler home. Defendant took the stand and denied being at the Hasler home or participating in the burglary. Under these circumstances, the testimony of Officer Smith may well have been the deciding factor in the jury’s verdict. We cannot be *67 sure about that, of course, but we cannot conclude and declare that as a matter of law the admission of his testimony was harmless error.
Technically, Officer Smith’s testimony was cumulative in the sense that it was additional to that of Mr. Gaston. It was not cumulative in the sense that it was additional to other testimony which fully proved that defendant was one of the men who participated in the burglary. According to 25 C.J.S. p. 34, “cumulative” comes from the Latin word “cumulo” meaning “to heap,” or “cumulus” meaning “a heap.” The testimony of Officer Smith was not the piling on or addition of testimony to a substantial heap or body of testimony of other witnesses clearly establishing that defendant was present and participated in the burglary. In this one versus one situation, I cannot conclude that the testimony of Officer Smith was harmless cumulative evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766423. Public record. Not legal advice.