State v. ClipstonState v. Clipston
- Reporters:
- , ,
- Before:
- Denecke
The defendant was convicted of burglary.
Defendant contends that the trial court erred in admitting the testimony of accomplices before there was any evidence, independent of the accomplices’ testimony, connecting the defendant with the crime.
The defendant requested the court to instruct the jury that in determining thе credibility of the accomplices the jury should consider their status as accomplices, their possible interest and their demeanor on the witness stand. The court’s failure to give this instruction was not error, as the court covered the same ground by giving the statutory instruction on this generаl subject.
The principal ground for appeal is the contention that there was no evidence corroborating the testimony of the accomplices and thus insufficient evidence to convict the defendant.
“A conviction cannot be had upon the testimony of аn accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.”
The accomplices testified that about 1:30 or 2:00, a.m., they left Baker, Oregon, with the defendant, in defendant’s car. They stole some fuel and put it in defendant’s car. The fuel later was discovered to be diesel fuel, rather than gasoline, as they believed it was when they took it. They went on to the town of Halfway, which is approximately 60 miles from Baker. There they burglarized a store. They stated that the dеfendant took part in this burglary, and it is for this crime that the defendant was convicted.
They then started back for Baker with the stolen goods in the cаr. On the way the car stalled, supposedly because the fuel system had diesel fuel in it, and they could not restart it. This was about 4:00 or 5:00, a.m. They put the stоlen goods in a ditch and started walking back to Baker. A stranger gave them a ride to Baker and they went to Lance “Whitmore’s house in Baker аbout 7:00, a.m., and asked him to tow the car back to Baker. Whitmore complied.
The defendant did not testify.
The corroborating evidence asserted to be insufficient is as follows: The defendant and thе accomplices were together in defendant’s ear in Baker between 1:30 and 2:00, a.m. The car stalled on the highway between Baker аnd Halfway was the defendant’s car. Most important, the defendant and the accomplices were seen at approximately 4:00, а.m., about 18 miles from Baker, on the road from Halfway, attempting to push defendant’s car in the direction of Baker. At 7:00, a.m., the defendant, in the cоmpany of the accomplices, was at Whitmore’s house and went with Whitmore and the accomplices out to the stalled car.
Dеfendant states that evidence which merely shows that the defendant was associated with the accomplices before and aftеr the crime and that the defendant might have had some opportunity to have taken part in the crime is insufficient.
More than mere association and some opportunity to commit the crime is shown here by the testimony relied upon to corroborate the accomрlices. The place where the defendant was observed pushing his car at 4:00, a.m., was probably approximately 40 to 50 miles from the scene of the crime. If this were in a populated area during the hours in which many people are active, defendant’s being in the company of the accomplices 40 miles from the scene of the crime might have little relevancy to. connect him with the commission of thе crime. However, between Baker and Halfway there are only ranches and a small town of about 200.
It is possible that the defendant did not go to Halfway with his associates, but under the circumstances that is so unlikely that the inference creаted by the circumstantial evidence that he did go is strong enough to furnish the necessary corrobation. It is also possible that, if he did go to Halfway with his companions, he did not take part in the burglary. Again, the circumstances create an inference to the contrary, — that he eithеr directly committed the crime or aided or abetted in its commission.
State v. Townsend, 19 Or 213, 23 P 968 (1890), is in point. Defendant was convicted of stealing a cow. The defendаnt and the accomplice were seen together at the accomplice’s brother’s house which was near the pasture from which the cow was stolen. This was considerably closer to the scene of the crime than in this case. However, Mr. Justice Lord’s reasoning in the opinion is pertinent. The decision distinguished State v. Odell, 8 Or 30 (1879), in which the only corroborating evidence was that the defendant had been drinking with the accomplice in town the night of a larceny committed in the town. Mr. Justice Lord stated:
“* * * This ruling [the ruling in Odell that the corroboration was insufficient] was undoubtedly correct, as there was nothing in the mere fact of the presence of the defendant Odell in the same town that was unusual, or which was not likely to occur without any previous arrangement between him and his co-defendant to commit the offense.But where the facts show that the defendant and his accomplice were together at a place under circumstances not likely to have occurred unless there had beеn concert between them, the case presents a different aspect. * * *” (19 Or at 215)
The time and place of this defendant’s association with the accomplices are also “circumstances not likely to have occurred unless there had been concert between them.”
Judgment affirmed.