State v. Emmons
495 P.2d 11
Idaho
1972
Check Treatment

*1 respondent invoices, Judgment for affirmed. Mo- prop- reproductions of the ap- supplier’s by respondent attorney tion for fees on erly in the form of admitted peal respondents. by denied. Costs to the sub-contractor statement conceded for accurately the amount owed to state January 1. On

materials furnished after McFADDEN, DONALDSON point reproductions of the invoices SHEPARD, MAYNARD, JJ., District redundant, into their admission were Judge, concur. error. If evidence was harmless competent the in- independent of

competent by itself to evidence is sufficient court, the

support findings the trial incompetent evi-

improper admission of

dence, prejudicial, which is not otherwise for

affords no basis reversal.9 respondent must requires also be affirmed. us Idaho, Plaintiff-Respondent, STATE respondent to decide a collateral issue that by attorney filing has raised motion for EMMONS, Defendant-Appellant. Leland Disposition fees appeal. of the motion No. 10968. governed by : 41-1839(3) I.C. § Supreme Court of Idaho. recovery of at- [allowing “This section March torney apply shall not to actions fees] against surety of or insurers creditors principal arising against

claimants surety guaranty is- contract

sued principal, insurer as to such

unless such shall creditors claimants claim, surety

have notified the writing, sixty days prior at least against surety.”

to such action procedure es- for such a motion was holding

tablished our v. Re- Molstead Company,10

liance National Life Insurance jurisdiction

that “the of this [to * attorney award fees on appeal]

must pleading.” be invoked suitable pleading”

That at- “suitable is motion for

torney averment, sup- containing fees

ported by record, given that notice was

the surety sixty days prior least

action, required by Respon- the statute. averment,

dent’s motion contains no such

nor do we find record supported

which would have such an aver-

ment if made. Flatness, 9. Johnson v. Smith, with former I.C. White v. Molstead dealt subsequently re-enaeted 41 — 41-1839.

Gary Morgan Gigray, L. Downen & Morgan, Caldwell, for defendant-appellant. Park, Anthony Atty. W. Gen., Martin R. Ward, Gen., Deputy Atty. Boise, plain- tiff-respondent.

McFADDEN, Justice. Appellant appeals Leland Emmons larceny grand conviction of as defined lS-dóC^l).1 Appellant I.C. tried before a which returned ver- guilty. dict of The district court entered judgment of conviction on the verdict and appellant sentenced the to a term im- prisonment years. not to five exceed principal is whether issue the dis finding trict court in not erred state’s main witness term is utilized 19-2117.2 The district to con court allowed sider factual against appellant. resolved it dispute concerning There is no serious question. the facts of the incident On 24, 1970, evening September youths and three other entertained them- by driving selves about the streets of Cald- well, six-pack consuming a or more of beer they appear and Frank drove. Appellant eighteen have been minors. years age, age and the of the fourth oc- apparent. cupant, not appel- evening beginning At the youths lant in his drove the other three changed they car. to another car Later driving. and Ted did the Soon after the cars, change of off at Frank was part his home and took no the subse- quent three continued events. The other “cruising” activities around Caldwell. only occupants car who fied at the and Frank. trial were January plice, corroborated tills unless he is Effective section itself, comparable evidence, repealed. provision and without the See Code, aid of the the new Penal and Correctional tends to connect I.C. 18-1302. offense; and the cor- commission of the “Testimony if it roboration is not of accom- § 19-2117. offense, shows the commission conviction can —Corroboration.—A thereof.” not an accom- circumstances be had on the car, followed from a noise in the street only events related to Frank’s n whichoccurred fel- out and saw one a shout. He looked he was prior to time as it of a car jump in the back seat low testified left at his home. away. to the distance Due Frank, to moved testified and also same facts as *3 unable to further darkness he was after Frank was occurred events which stated, occupants. He or the midnight, ac- vehicle after off. Sometime however, not unusual it was boys Randy’s testimony, cording to vicinity. The youths stop to in that Street, appellant cars or- Maple and drove onto description any of record fails to contain driver, alongside a stop dered boys using three were second car the wagon. parked station than it a two-door evening other of Randy appellant got out testified that model. wagon, car, in the station looked Johnson, Mr. remaining witness was The opened typewriter door and removed a corporation em- president which car. placed in Ted’s and and these cover He ployed as a salesman. Mr. Rowland he called stated that both and Ted typewriter cover as and identified alone.” to “leave this stuff statements, property corporation and established of the their how- Inconsistent with of the items. the fair market value ever, got of the and Ted out both proceeded help car and themselves to testimony, appellant all At the close copier machine out of the briefcase and and the information moved to dismiss wagon and loaded these items acquittal. motion direct a verdict of His charged (The information Em- Ted’s car. 19-2117, supra note 2. on I.C. based only typewriter larceny mons of the with Randy, the Appellant contended (1) and mention either its cover and did not witness, accomplice as a matter of machine.) copier the briefcase or law, that there was no corrobora- and Randy’s testimony required tion of personal property in placing After 19-2117, vehicle, immediately supra. boys the three they away along drove side streets until challenged these respondent The reached a rented a relative vacant house court two contentions and district appellant. The three unloaded ruled, what- no corroboration “there [was] goods ap- put house and them in the witness,” testimony soever of pellant and Ted then drove however, court, Randy. denied Randy apparently further home. had no verdict, gave the motion for a directed only goods contact with stolen in- accomplice, then definitions spoke briefly in- thereafter with Ted who as follows: structed them police formed him that the had been look- “You are instructed (Ted). for him ac- be had on the cannot Three other witnesses testified. A Cald- complice, he is unless corroborated police well detective testified that he came itself, evidence, with- possession typewriter into of the and its the ac- the aid of the cover from a third individual who told him complice, connect the tends to purchased typewriter she had offense; and of the commission cover from Ted. The detective’s if is not the corroboration way ap- in no connected the the of- shows pellant. of- fense, the circumstances fense. Rowland, Mr. the owner of the station taken, goods were witness, Randy from which you “If find morning *, defined early hours of testified that in acquit the you instructions will in these

September he was awakened €08 * * * joined one [Randy’s] who is or united with another;

mony Instruction one is not corroborated.” of several concerned in a felony; crime; an associate in a aids, co-operates, who or assists in com- objected prosecutor to the last ” mitting (Quoted it.’ from State v. Alt- 17, contending portion of Instruction watter, at 157 P. 256 How corroborating evidence. 257.) ever, respondent in this Court It our cross-appeal took no this issue could is. conclusion that the where actions witness, 19-2804(5). Randy, squarely been Nor fall have raised. within argues respondent’s any refer these definitions. does the make The State brief *4 did not ence to Su take cover such issue of corroboration. charged. part, for which preme Rule in was Al Court 41 states fact, though yet, is the based on his parties the sev “Briefs both shall state unequivocal statements, inescapa it is also propositions to in eral of law claimed looting ble that in re assisted volved in the case and the authorities wilfully participated Stevens, in upon.” and lied Idaho See State v. 93 Therefore, hiding goods. the stolen This was 48, one (1969). 454 P.2d 945 we chain or transaction. proper continuous of events decline to consider this as an jump It took but a to moment for ly before this Court. help car the theft of Ted’s and a of decisions This Court in number the station wagon. from That this witness dealt with the definition of term provisions an Wilson, “accomplice.”3 v. 93 State only logical and 19-2117 is rea 199, at P.2d at 438 Idaho 194 457 433 can be reached sonable conclusion which previous (1969), we reiterated statements record. from this of this Court follows: “ person “accomplice” ‘An is dispute in there are facts Where of a cerned in the commission genuine issue as in conflict which raise a directly participates in the whether he an accom is indeed to whether witness constituting the act to plice, the court that issue must submit in its commis- offense or aids and abets Brown, v. for resolution. State ’ ”* * * v. from State [Quoted sion 576, (1933). 26 131 How 53 Idaho P.2d 215, Gilbert, 210, 142 P.2d 65 Idaho ever, it is clear our decisions that 584 at 585.] appears con where “it substantial “ ‘Mere “ ‡ presence [*] [*] at, [*] acquiescence [*] [*] in, flict an accomplice,” in the court such must witness decide the v. consent the commission an law. question or silent as a matter of State not, duty Brown, Wilson, supra. supra; is of a offense the absence v. State 436, repre- State, 14 P. legally Ariz. act, however Accord: Cruz v. 40 Wallin, may be, ; one a 32 Cal.2d (1932) People v. hensible it constitute 2d 247 ; People v. Bar 803, principal, accessory, or aider and (1948) 197 P.2d 734 (1953); 146, 321 abettor, clay, An accom- P.2d accomplice. or an 40 Cal.2d 252 accomplice, Altwatter, 107, is of P. for v. 29 Idaho 157 the definition of State authority. (1916) ; Grimmett, that decision 33 doubtful 256 State v. Brown, ; question 203, (1920) whether v. held 193 P. 380 State ; 576, (1933) defendant’s 26 Edwards was 53 Idaho Emory, 649, fact for 67 arson one of 46 P.2d crime of jury. to be v. 210, that Ed- Gilbert, has shown v. Our research subsequently Gonzales, and con- tried P.2d v. wards 142 584 very crime. same victed 92 fundamentally Grant, the reason- 140 P. fact weakens State v. 26 opinion. (1914), prior decisions found 959 cited State, binding court. The statute is both on 89 Okl.Cr. Walker v. ; State, juries, provisions can- P.2d (1949) courts Renfro Carr, evaded, ; Or. not be however wholesome (Okl.Cr.App.1970) State Gowin, case, ; might particular (1895) be in a P. 215 State v. submitting The district to a Or. accomplice, allowing therefore erred in whether a witness is an

court pass on this issue. when no such issue of fact is raised * * 42 P. at 217. opinion Oregon Supreme Court’s We concur with the Ore- reasoning Carr, supra, wherein a criminal gon Supreme Court. reversed because it was conviction was testimony of an based on uncorroborated of conviction reversed appellant discharged. contains a clear statement 19- purpose such 19- statute as I.C. 2117: SHEPARD, “ JJ., DONALDSON * [essentially This statute concur. absolutely pro- same as I.C. § 19-2117]

hibits a criminal case *5 BAKES, Justice, and McQUADE, Chief upon the uncorroborated of an dissenting part in (concurring Justice although even the [sic] part). in entirely may testimony to be believe such a conviction provides that true, and that it establishes the defend- 19-2117 accom- testimony of an beyond may It on guilt reasonable doubt. be based ant’s evidence proceeds theory experience upon plice the that if it is corroborated the to connect independently “tends in the administration of the criminal law that of- the the commission has shown the sources such defendant holding, the majority’s generally corrupt to be as to render it so fense.” accom- an unworthy belief, prosecution’s there- chief witness and that it is statute, necessarily raises public policy fore better as a matter However, the of corroboration. forbid a conviction on the uncorrobo- the issue pivotal this majority opinion circumvents accomplice, al- rated it an declining to consider though may thereby question by guilty the sometimes Court. On this escape possi- properly before punishment, than to leave it discharged. I is ble innocent the defendant for the conviction of an basis issue; accomplice person holding the testimony. cur in the on such Whether this ques- corroboration rule of is is not for but I believe law wise unwise squarely, and written, faced inquire. be us to It is and must tion should so trial. for a new be remanded applied by be the court P. case should at 216. bal- careful embodies 19-2117 By propriety allowing As re- policies. competing social ance of testimony, accomplice accomplice to decide the issue: reliance on stricting “ * * * defendants protects innocent jury of the statute The submission solely on evidence based Hun- from convictions as to whether Mrs. suspect.1 considered accomplice equiva- from sources tington an obtained authorizing based convictions decide, effect, However, allowing lent to them to testimony when corroborated be enforced on such whether the statute should tending connect independently suspended, as in their would and, with commission promote justice,

best the ends of society protects also the statute quoted, was an of the section above view escape crimi- seek upon from offenders who duty incumbent evasion Smith, g., 337, 164 P. 519 E. simply by asserting culpa- struction is of common liability nal a creature law synthesis may employed only bility of the witnesses.2 This of which when there is evidence on to base a conviction.3 policies signifies to me that the no which insufficient, indivisible is and corroboration issues are Where may give only advisory in- applied when the to a set of the court statute is discretionary case, struction, facts. In this has asked which is light is not bound to “The us to review the factual record follow.4 quantum part defining an accom- turns on the of evi- of the statute distinction 41(2) produced.” plice. read our own Rule dence I cannot rendering helpless apply this Court case, peremptory In the in- requested in re- unless whole statute proper only if no struction was event, spondent’s any brief to do so. corroborating evidence whatsoever. The request did make such a oral found, finding trial ordi- court so argument For before Court. narily great weight, is entitled to but is accomplice issue but Court to examine the the record be- difficult to reconcile with justi- is not evade the corroboration issue Frank, youth fore who was us. appeal, by the of this fied circumstances home, placed in the nor the structure and consistent with late as 12:00 or 1:00 a. m. language underlying statute. night the committed. The car crime was occurred, disputed already and when quoted Instruction transfer had indi- majority opinion,'was an instruction no Frank left the there were three fact, in their requested. including the defendant re- viduals Rowland, quested the salesman chief witness be deemed automobile. Mr. but that the issue of corrob- from whose *6 removed, jury. testified oration be submitted to the and other items were When accomplice and 2:00 a. m. he saw gave the trial court the issue to between 1:30 totally a car testimony his house the but deemed the from the window of wagon. uncorroborated, objected stopped As it prosecution the station beside the away figures of “highly he the and termed the court’s instruction moved discerned However, he prejudicial.” jury, persons “three inside. When after or four” instructed, investigate he found being guilty a ver- went so returned outside pre- tne station argument gate to which I tail and left rear door of dict. In the oral referred, question viously wagon open items in counsel the State and the Wing testified that argued judgment gone. if the of conviction Police officer from a accomplice issue the later recovered the were reversed on the he Dill, trial be- testified further case should be remanded for new Mrs. type- objection him the issue of informed genuine cause there remained a she purchased from a member not have been writer was corroboration which should had group the defendant jury. of the in which taken placed. of this been None evidence nature; peremptory in Instruction 17 was defendant, produced disputed by who acquit the de- commanded own at trial and no evidence of his found to fendant if the chief witness were the chief wit- defense was that whose sole accomplice, be because accomplice. ness was an peremptory in- was not corroborated. The 546, Puckett, P.2d v. 88 Idaho 401 Gillum, 4. State 228 2. v. See State (1965) ; McCallum, 77 (1924). 784 P. 334 (1956). 489, 295 P.2d 259 Powaukee, v. State Grow, Adair, v. State P.2d 488 McCarty, P. 695 crime, of the and traced accomplice group at the scene is cor- group. specified 19-21J to the if the contraband roborated under I.C. the evi- pierced accomplice Testimony with of the dence “tends to connect the defendant * * * culpa- as a the defendant of the offense might per- party. this be ble basis it On does not commis- [and show] corroborating suasively argued that sion of the offense or the circumstances requirements of I.C. general govern- thereof.” There is no rule evidence satisfied very ing required, least quantum 19-2117. At evidence but improper to render it is sufficient well settled the corroborative evi- corroboration jury based peremptory dence a instruction need not be sufficient itself to prove no finding by on the court that there was guilt, support nor need it a whatsoever. mony every corroborating evidence of the material light holding chief witness may slight fact.6 of our The evidence itself entitled entirely long circumstantial so le- properly jury is gitimately a trial at which the “tends to new connect” accused on corroboration. commission of the It is in- instructed offense.7 application structive to note our of these empowers this 19-2821 analogous rules facts in State v. an or- on reversal. Such order new trial Bassett.8 case the defendant own motion be- der is made on Court’s stealing kill- convicted of trial is re- right cause to move for new ing belonging a steer to another. The cor- defendant. served 19-2406 to the I.C. § roborating placed course, refrain from exercis- Of we should awith co-defendant and the statutory power on our own to act this testifying accomplice, place group at rights if motion the scene physical and traced However, the cor- prejudiced. would be group. of the crime to the has been defend- roboration issue raised identified the request we Instruction 17 ant’s review culpable party within Moreover, light there 19-2117. I.C. § group. The corroborative evidence was defend- judgment in favor of has been no found judgment sufficient and the of con- case; ant in viction was affirmed. In that decision we guilty. pursuant to a verdict of *7 entered recognized prejudice No the defendant would is necessary culpable members contrary, To the dis- a new trial. group may when entire charge of the defendant new principals sist of accomplices. If the penalizes erroneous trial for an pierced fashion, could not be in this request it did not and to instruction which it possible would be for each member to es- importantly, objected. More cape liability criminal asserting compromises public inter- the fundamental culpability of the others. guilt having defendant’s true est in properly innocence determined analysis applicable law. case. Evidence independent accom- plice’s testimony placed should be remanded for a new case in a specified group, placed trial. corresponding Gillum, supra Brown, State v. 26 P.2d note 2. Orr, McCandless, 7. State v. P.2d ; (1950) Mundell, P.2d 8. 86