People v. Rhinehart

AGEE, J.

Defendants Rhinehart and Keller were jointly charged, tried and convicted of second degree burglary. Neither defendant testified at the trial nor were any witnesses called in their defense. Rhinehart appeals from the judgment. His sole contention is that certain statements of Keller, made to a police officer outside of appellant’s presence, were highly prejudicial to him and should not have been admitted into evidence.

Respondent replies that the jury was instructed repeatedly

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that such statements were admissible only as against Keller and were not to be considered as against appellant.

The burglary was of premises occupied by a trailer company sales office and was discovered about 10 o’clock a. m. on September 13, 1960, when an employee found that the check protector and two pads of blank checks were missing from the office. The police were notified immediately. Shortly after 10 o’clock a. m. of the same day, a man identified as defendant Keller unsuccessfully attempted to pass one of the checks, which had been filled out in the meantime by someone for $129.59. Keller was apprehended the same day shortly after 1 o’clock. He and appellant were seated in the back seat of an automobile. Two other men were in the front seat. There were a number of the stolen checks lying on the floor of the rear seat underneath some newspapers. On the same day, a police technician “lifted” a fingerprint, which he described as “very fresh” and recently made, from the window jamb on the inside of the rear.window through which the entry had apparently been made. An expert from the State Bureau of Criminal Investigation identified the print as being that of appellant. Appellant had worked on the premises as a janitor about one year before the burglary, so that he was familiar with the physical layout.

The foregoing is a summary of the evidence admitted as against appellant.

Officer Mergen testified that, on the same day, he had a conversation with Keller at the police station, the substance of which was that he (Keller) had attempted to pass the forged check referred to above. Appellant was not implicated or referred to in this conversation. However, the following took place before it was related to the jury: By Mr. Doll (prosecutor) : “This is evidence only against the Defendant Keller.” By the Court: “Any statement made by Mr. Keller to the officer will not be used against Mr. Rhinehart (appellant) because Mr. Rhinehart was not present. . . . All right, the jury is instructed that any statement Mr. Keller made to the officer will not be used against Mr. Rhinehart.”