*1 MONTANA, STATE OF Respondent, Plaintiff Appellant. HARMON, THOMAS HENRY Defendant 9959. No. 1, 1959. January June Decided Submitted (2d) 128. 340 Pac.
(227) *2 ADAIR dissented. MR. BOTTOMLY and JUSTICES Purcell, Butte, appellant. E. for James Robischon, Asst. Anderson, Atty. Gen., H. James A. Forrest Robiscbon, Atty. Gen., and Robert Atty. Gen., A. Asst. James Holland, Butte, respondent. J. for Judge, LOBLE, District
THE LESTER H. HONORABLE HARRISON, deliv- sitting place MR. JUSTICE CHIEF Opinion ered the of the Court. burglary com- degree first guilty was found
Defendant Montana, County, on or about Butte, mitted Silver Bow con- years ten day February 13th He was sentenced to A Lodge, Montana. penitentiary finement in the state at Deer and at prior information charged was conviction a five trial it served proved previously was that defendant had year guilty like plea prison sentence the same offense.
The Plea. pleaded guilty, counsel, not requested Defendant did testimony, testify, exclusion, introduced no- invoked the rule of but dismissal lack of close of the state’s case asked for charged. prove burglary evidence and failure to Motion denied.
The Verdict. trial on Following verdict, for a new moved ground contrary that the verdict the law and the evi- dence. error appeals judgment, specifying Defendant from the in that trial grant court refused to his “motion for dis- missal,” grant and refused him a new trial.
The Facts. Defendant was convicted on the of an accom- plice, by Sufficiency corroborated circumstantial evidence. of question presented appeal. corroboration the sole on by Carter, Negro accomplice, facts testified to a and the are Henry these: Thomas Harmon, defendant and white the a man, years. and acquainted eight the witness had been about They penitentiary met the state Lodge, in at Deer Montana. When appear, Harmon was released does not but witness the had Lodge days been released from only Deer two before the present crime was committed.
A person, third McMann, Keith acted a lookont, shared the loot and day was arrested the next with Harmon and Carter. McMann not testify did and does not figure otherwise in Har- appeal. mon’s trial.and
The victim was Malcolm L. Ferns, cripple a who lost had a leg and crutches, pensioner living walks a on a meager social security disability income.. At the time of the burglary, Ferns
'230 rooming Butte house located apartment in No.
resided 16-of custom Street, apparently alone. It was Ferns’ (cid:127)209 Colorado n toconvert checks disability payment into traveler’s monthly his as he it. as soon received uneountersigned Express American Com- was
The loot four less than pany checks, $10 $5 and one bill and traveler’s one bill Harmon, this removed change. $5 in All was silver and room. The checks (cid:127)according Carter, burglary in the of Ferns’ day next by Harmon Carter. The immediately passed were countersignature and cashed three the forged (cid:127)Carter Ferns’ McMann. buy Harmon, himself and checks to merchandise for in was found the The fourth check lost or discarded and street. 13-14, drinking night February the Ferns was
On bars, and among Butte the Silver Dollar various others During and evening Oasis. same Harmon Bar closing Dollar until Butte,- and and out the Silver n Butte, Comparatively Negroes time. few reside together presence of Harmon and Carter was noticed. Ferns evening in the from there early was in Silver Dollar n Bar two “Good helped across the street to Oasis Samaritans;” identified. not otherwise Oasis, remaining $20
In of his traveler’s Ferns cashed one plank” (the cash) bar checks, (paid “timbered” “across money top) laid his checks and for drinks for the house and wine bar, bought out also bottle of to take home on the night. Harmon February against chill was seated three plank,” away, two or stools the' elbow of “the around obviously sizing the situation. up Oasis, Ferns went home From taxi and bed. He n money. picked up his Hannon checks his drink finished twenty and in about minutes drifted to the Dol- across Silver *4 join burglary. lar. There invited Carter to him a only 11:00 time about ’clock Harmon they was o cautioned Harmon, midnight, must a About Carter, wait while. and Mc- room, Mann a few proceeded away. Ferns blocks McMann just hallway waited a outside as lookout. Carter stood the outside Ferns’ room door.
Using tool) (strip celluloid, burglary a “loid” a common Harmon, according Carter, compressed spring the the on lock, latch, room, door worked back Ferns’ turned the entered light money. slept and took Ferns’ on. checks and Ferns When morning, Ferns awoke the next he called the Oasis swamper if asked had found his When told checks. “nothing bar,” money was on the back and that no had been cleaned, found when the floor stopped had been Ferns payment on reported police checks them to the as lost.
Harmon, according Carter, had removed the cheeks and money, but immediately passed had At checks to Carter. trial, emphasized that he had not entered room and that Harmon any had not entered store with Carter to cash of the stolen traveler’s checks.
Outside, Carter tore the traveler’s checks from the hook and threw the cover down on street. Then the three men re- turned to the Bar, split Silver Dollar currency and ordered a fresh round of drinks.
Either they were returning from Ferns’ room or some during time later the night, Carter or one of the others lost or away threw one of uncountersigned traveler’s checks. It was found in the morning not far from Ferns, rooming house by two women walking to a meeting. church These women assumed the check had lost, they been but when Ferns’- saw name a burglary story in the afternoon paper, they Butte turned the check over to the police. By then Harmon and Car- (McMann’s ter disposition is shown) already not back in jail.
Legal closing time for bars in Montana is 2:00 a.m. At 2:30 a.m. Harmon picked up again in neighborhood of Ferns’ rooming house, by night police answering prowler a call. He was searched and booked as drunk, but was released in the morning when the woman who reported had prowler could identify him. The officers noticed that Harmon carry-
ing pocket flashlight strips a small two kind celluloid commonly by burglars, strips having used a blue one the marking band. Carter that he had sent a taxicab volunteered city jail morning Harmon, around to the but Harmon the for already had been turned out.
Harmon, Carter and McMann were arrested before noon on complaint bought the a Butte haberdasher from whom Carter a hat for Harmon for one Ferns’ paying it with traveler’s crudely countersignature. forged checks to which Carter Ferns’ arrested, just When Carter had a watch which he had wrist bought store, using in another Butte two other of Ferns’ checks. n While shopped, Harmon and McMann waited at driving, curb in the Cadillac three were but the two white together Negro cruising men with the had been seen the Butte many morning winter streets too Butte citizens that not to escaped arrested, suspicion. wearing have When Harmon was newly purchased hat strips and had the two celluloid still in his pocket, being strip coat with the band. one blue The police found Ferns’ soon the cover for book of traveler’s cheeks police they in the street where would Carter told find it. Briefly summarizing against evidence the corroborated may it Harmon, séen that: presence 1. The accused was in the victim’s when Ferns “timbered”'at the Oasis Bar. position
2. léarn The accused was in tü the location of the gave victim’s room from the Ferns the taxicab driver address already it). (assuming the accused did know time the Each accused was arrested he carrying two 3. “loids,”'one mark; police with a blue several officers saw arrest; these at the time accomplice of each testified the two, accused used a “loid” and carried one with a blue mark. accomplice 4. said he The threw Ferns’ check book cover police down in street. The found where the accomplice said he had The women thrown it. two found the fourth check neighborhood. in the same- accomplice together
5. The accused and the were in various also burglary; the time Butte bars before and after following expedition shopping they together on the day. countersignature Ferns’ forged said he the ac- When buy watch. Ferns’ a wrist
to two of checks complice he had the wrist watch. was arrested traveler’s Ferns’
7. The said he used another of accused, buy arrested cheeks to the accused a hat. When Harmon, wearing the hat. *6 to- accused, MeMann, and the were
gether during morning accomplice, their arrest. The the of a man, company men, colored seen in the of two white with dog, in cruising a small all the Butte streets Cadillac the a morning jeweler of their arrest. The who was bilked out of the reported police. watch them to the So did the haberdasher immediately hats, who was out. of the two bilked noticed countersignature that the on the traveler’s check forgery. was.a 9. They acquainted, time in together served the Mon- Lodge. tana State Prison at Deer a corroborating
These are but few of the facts in the found transcript. showing,
On jury this the convicted Harmon of first degree burglary years and the court sentenced Harmon to ten in the penitentiary. For state it both and Harmon was sec- a. also, Carter, ond admittedly offense. guilty burglary of forgery, of had been the penitentiary outside state barely seventy-two hours. urged
It is dissenting opinion that the lower Court “set out the correct rule to be followed clear and unmis- takable language in its instruction 18” No. and the instruc- tion is set urged forth. It is that “this jury instruction the ignored.” Honorable E. Downey, T. Judge who tried the case, did not so conclude. He denied a motion for a new trial.
As pointed hereinafter out, the corroborating evidence need
not direct, may be it circumstantial; be it need not be justify to conviction, sufficient or to a prima establish facie guilt; case of it the defend- not be sufficient to connect need if it ant crime; with the it is sufficient commission of the 92, 89, page to Cobb, tends do so. Mont. State 265, Pac. infra.
Statutes. “A Controlling 94-7220: statutes R.C.M. section are as defined degree burglary conviction this case the first [in can- penalized by 94-901 to R.C.M. sections 94-905] accomplice, unless he not be had on of itself, without evidence, which corroborated tends connect accomplice, the aid of to of cor- offense; and the defendant with the commission of merely the commission sufficient, if it shows roboration is thereof.”, and R.C.M. offense, or circumstances subject to the control jury, 93-2001-1: “The section * * * judges specified are the court, in the cases them, except when effect value evidence addressed are, in- They however, be to be conclusive. is declared ** * structed ought “4. That of an * * *” viewed distrust Specifications of Error. is against specifies that the verdict stated, the
As *7 speci- carefully We reviewed these the law evidence. the is suf- question what corroboration error. The sole fications accomplice. Thomas the of an for fices conviction and Keith McMann Harmon, George Henry Edward (2d) Bean, 136, 135 Mont. 337 Pac. all State v. principals. 29, page 688. Burglary, 12 section C.J.S. 930. See also persons burglary, of two for it is support a conviction “To entry by both, shall that the be but if one not essential by the doing and was aided other in so entered both of them may by being committed burglary present be guilty, (cid:127)are ” entering. Burglary, in C.J.S. aiding another section .and 675. 10, page necessary person that a actually
“It is not to show accused
235; breaking, in the that he aided appears entered if it and.abetted 29, page Burglary, section entering.’- 12 C.J.S. entry¡ burglarious witness, the evidence, by eye an Direct a conviction. rarely required sustain available or to Accomplices. Rules of Law on the trial federal American In Britain and the courts* ad-, cautionary include judge’s comments on the evidence unreliability an accomplice against monition the well-known American, In himself. may seeking protect witness be who conveyed through cautionary admonition is state courts the . language.: statutory formal written instructions couched Reflecting status, the Bannack statutes Montana’s territorial accomplices permitted of 1864 conviction including (Crim. Act, 3, 12, page 178), Chap. Prac. section , 243, 175). players gambling game (page The stat-. section by Virginia City Legislature utes Territorial in- codified (Cod. requirement 1871-72 added the for corroboration Stat.. 238) “by Act, 316, page Crim. Prac. section such other evidence as shall tend connect the defendant' with the com- Emphasis mission of offense thereof.” circumstances supplied. Subsequent Legislatures Montana have extended the only statute require (1) that corroboration must evidence more than the commission and the circumstances of the offense (necessarily principals), (2) later known to all cau- tionary requirement, cautionary met British comment and statutory instructions, American of an ac- complice ought to be viewed with distrust. first, term of the Montana Territorial Supreme Court May 17, 1865,
convened but it was until August term appeal 1877 that an involving sufficiency of corroboration presented to this- January- court. In the term question was raised for a second 'time. These- Territory are the eases of Corbett, v. Mont. and Terri tory Mahaffey, These cases hold Mont. 112. that an accom (cid:127) plice witness, is treated credibility save his may affected is charged fact that' he the- same
236 testifies; that accom- person
offensé as against whom he plices given every need item of not be corroborated on by same; tends to connect which admissible, is defendant with the the offense commission of though weight jury. its is for the question has been decisions,
Since the time of first these times, need for corrobora- many carried to this not on the court tion, is sufficient statutory, point which is but of what on corroboration. Brantly as “one by
An is Justice defined Chief intent voluntarily, and with common knowingly, who in of a commission principal unites with the offender * * * accomplice by being an may One become crime. act, by aiding and abet present joining the criminal by or, being present, ad commission, its ting another commission; knowledge and vol but encouraging vising and its impute guilt.” State in order untary are essential actions 200, 201, 191, 37 Mont. Court, 1908, Webb v. District ex rel. tampering; jury included 745, 15 Ann. 593, 597, Cas. Pac. 95 ed., 813 at Evidence, 5th section in 3 Jones with citations 1525. page party in some manner must be
Necessarily, an accomplice when testi- By he is called custom to the crime. 14 Am. crime. See the same party to another fying against 108, pages 839-40. Law, section jur., Criminal by Brantly again defined Chief Justice accomplice was An appeal Hawk murder as “one Spotted cited often charged, either complicity in the crime guilty of is who it, having abetting ad aiding or present being place from the at it, though absent which encouraged vised Hawk, 22 1898, 33, Mont. Spotted State v. it is committed.” page confession at 57 (Whirlwind’s 1026, 1036 55 Pac. corroborating is the testi 1033 of Pac. page Mont., repeated Justice Matthews for definition mony), and this intervening cases, in State court, a review full 278 Pac. The definí- 85 Mont. McComas, 1929, *9 also, See in Montana. decisis long tion has since become stare companion a 68, 919, 22 55 Pac. Geddes, Mont. State v. 927; 92, 22 55 Pac. State ease, Welch, Mont. murder State v. 341, and, (2d) 26 317, 325, 95 Pac. (robbery), Jones Mont. v. Bean, supra. decided, cited recently the most State v. proof. confirms, confirmation, is that which
Corroboration 519, Pac. (2d) 287 People Bowlby, App. 135 See v. Cal. (2d) (2d) legal In sense corrobora 547, 53 A.L.R. 1147. mind impartial leads and reasonable something tion which testimony is true. “Corroboration to believe that material or conduct of the may admissions, declarations also consist which tends defendant, writings documentary or other evidence and the de to show concert action between * * (5th ed.), fendant *.” 3 Jones Evidence section 814, page Mahaffey, supra. Empha 1526, citing Territory v. supplied. competency sis question “The of a witness is, Jones, supra, of course, to be resolved the court.” section 815, page 1529.
<<# # # jf judge the trial is satisfied that the evidence is corroborative, duty it is his submit jury, the case to the then question it becomes a jury for the to determine what given effect should be to the corroboration and whether it is sufficient to warrant a 22 conviction.” Law, C.J.S. Criminal 813, page 1417, citing section McComas, State v. supra, and 126 Donges, 341, State v. Mont. 251 (2d) Pac. 254. The test 1947, under R.C.M. section 94-7220, is that the corroborating testimony tends to Bolton, connect. State 65 74, v. 212 Mont. 504; Pac. Yegen, 251, State v. 210; Mont. 283 Pac. State Jones, supra; Deschamps, v. State 566, v. 118 Mont. 168 Pac. (2d) may It entirely even be circumstantial. State v. Ritz, 65 180, 298; Mont. 211 Pac. Yegen, supra; State v. State Jones, supra. v. put by
The rule on corroboration is well Mr. Justice Hollo- way Cobb, page 92, 76 Mont. at State Pac. says: page where he by the may supplied
.“(a) corroborating be evidence defendant or. his witnesses. may.be circum-
“(b) need not be It direct.evidence —it stantial. every accom-
“(c) It need not extend to fact to which plice testifies. or to
“(d) justify It need not be sufficient to conviction prima guilt. establish a case of facie “(e) sufficient to connect It need if it tends to crime; is sufficient commission do so.
“(f) corroborating tends to con Whether evidence is a of the offense nect the defendant with commission efficacy weight evidence—its question law, but *10 story render his fortify to of the and jury;” trustworthy matter the consideration for. —is court. Cobb, supra, has often been followed this State v. 420, Jackson, 88 Mont. Yegen, supra; v. See State v. State McComas, 309, 311; supra; 293 State v. 430, Pac. State v. 236, 259 Pac. Donges, supra; Duran, 233, 127 Mont. State v. 381, 264 Phillips, 387, 127 Mont. (2d) 1051, 1052; v. State 230, 56 Mont. 182 (2d) 1009, 1012; Slothower, Pac. State v. Keckonen, Kitz, 107 Mont. 270; supra; Pac. State v. State v. 253, (2d) 341; Jones, supra. 84 Pac. State v. Cobb, supra, clearly has
State v. established formula are judged. which the facts Bach case rests its own applied facts with the above formula to those The cor facts. roborating justify evidence need not be sufficient a con prima guilt. viction or even to establish a case of The facie suspicion; corroborative evidence here raises more than is presumption inconsistent with defendant’s constitutional innocence; and it identifies the accused the criminal the ac says is. complice (5th ed.), 814, Jones on Evidence section page 1526. It tends to 'connect.
While essential opinion, early English to'this cases historical, following judicial authorities and are of interest testify. accomplice to permitting of the doctrine the evolution 1061; the trial Rep. Eng. 17-18, 84 case, Kelyng Tonge’s Tho. 1185, Tr., at 10 How. St. (1685), Oates Titus at Old al., et tried Charnoek, Robert prosecution of treason 1403-1405; Tr., St. How. Bailey, 11 March 2, Chap. Book (1762), ed. Crown, 4th Pleas of the Hawkins’s English authorities subsequent 432. Some 18, page section 418; Eng. Rep. 106, 173 (1837), & P. Farler 8 C. Regina are Joy’s and Baron 658, 677; (1916), 2 K.B. Rex v. Baskerville VII length in Accomplices” (1884), quoted “Evidence of 322, 323. 2057, pages (3rd ed.), section Wigmore on Evidence by an be convicted an innocent will hazard that man The hundred bitterly three pled so accomplice who, as Chamock away my life against me take years by swearing “would ago, The repelled. instant been his has in the case own” save defendant with tends connect the corroborating evidence no sufficiency, we entertain Of its commission of the offense. doubt. judgment
The is affirmed. of conviction CASTLES, concur. MR. JUSTICES ANGSTMAN (dissenting). ADAIR, MR. JUSTICES BOTTOMLY and We dissent. charged Harmon against was informed liberty He, His like a serious crime. in the balance.
any person, safeguards has the other of our Constitution protect him in the manner as our statutes to same *11 person. liberty may lawfully away His taken be without process due of law. majority opinion recognizes quoting the Chamock case may by hazard that an
the innocent man be convicted an ac- by swearing against away complice my who “would me take principle majority lays aside, life to save his the own.” This proceeds to affirm the and then conviction of this defendant upon testimony the uncorroborated a of self-confessed accom-
plice. By doing majority stripped the so has this defendant of protection the afforded him by law. 94-7220,
R.C.M. section provides: “A conviction cannot be the had on an accom- of plice, in it- evidence, unless he is corroborated which self, accomplice, and without the aid the the of of tends the the to connect the commission of offense; sufficient, merely and the corroboration it is not if shows the of the there- offense, commission or the circumstances ’’of. Emphasis supplied. applied supra,
The court 94-7220, has and construed section in the appear majority opinion. various decisions which in the quarrel general We have no with most the of of statements accomplice law found We therein. concede that Carter was an principal, as well as a and it is for this reason that provi- sions of section 94-7220 application have here. con- We cannot majority opinion cur in the it apply for reason that fails to and give salutary provisions effect to 94-7220. section In Geddes, State Mont. Jus 919, 924, Pac. “* * # tice Hunt said: where convictions were asked for upon accomplice’s testimony, an it is settled this state quoted 94-7220], statute section the corrobora [now independent tion must source, be evidence an must and it from independent evidence, be such itself, that this con without sidering all, tends con nect the charged. defendant with the commission crime it Furthermore, is not satisfaction statute to corrobo upon rate matters, immaterial prove merely or to charged committed, crime has been or the circum committed; stances under may which has been for there be yet all proof, such essential the additional evidence lacking, independently which of the evidence of the accom plice, leads inference that the defendant is connected way a criminal with the commission Empha of the crime.” sis supplied. applicable
This statement law was reestablished
241 33, 22 Mont. Spotted Hawk, Chief Justice in State v. Brantly Whirlwind’s 1026, sought 55 corroborate Pac. wherein was to testimony Hawk, by confession, implicating Spotted the not be corrobo- testimony Shoulder Blade. Such held to rative. again in principle
This reiterated the court same 927. The of the Welch, State v. Mont. Pac. command testimony must as corroborating statute is the be viewed if testimony no given by accomplice. at all had been The independent testimony then see if must be examined to it tends to connect the of the defendant with commission offense. No placed upon reliance can be of the accomplice. repeat We here what was said the above case. diligently We have searched the record vain for evidence given by other than that accomplice to the defend- connect ant burglary with this crime it is carefully weighed our opinion competent that there upon was no evidence whatever which to base a conviction.
The district court in this case set out the correct rule to language followed clear and unmistakable in its Instruction No. wherein it was said:
“You are instructed that in determining whether or testimony of an accomplice has required been corroborated as by law, you must assume to be from removed the case the testi- mony accomplice, of the and then examine all other evidence with a determining any view of if inculpatory there be evi- dence, is, tending to connect with the commis- sion charged. of the offense that, If such other evidence does do then the corroborated. If it not, corroboration, although does then there is no the accom- plice may regard be corroborated in number of facts sworn to him.” jury ignored.
This instruction the This instruction the ma- jority opinion overlooks. reviewing
In this appeal matter on it is duty this court’s presented by review the evidence the State to see if the testi- independent mony Carter was corroborated defendant, Harmon, Tom tending to connect charged. question offense commission whether is such corroboration is one of law for court. these Jones, 210; Yegen, State v. 86 Mont. 283 Pac. State v. *13 (2d) 95 Mont. Pac. reading transcript that
In the entire it is obvious what time prove State set out to do here was to that some between being evening p.m. a.m., the hours of 11:30 and 3:20 the late early February morning hours of the of hours of 13th and the apart- 14th February 1958, burglarized Tom Harmon of Butte, County City ment located at 209 in the Colorado Street Bow, of Silver State of Montana. testimony by
From find Tom independent witnesses we first Harmon, sitting approximately p.m. February 13, at 10:30 in City the Oasis Bar on Main in the Butte. South Street merely drinking. At that time he bar sitting was at the While there, Ferns, alleged burglary, one the victim of the entered bar, bought drink, expressed the entire house a or as he it, “timbered,” bought cashed a a bottle of wine. check drinking After his drink a he asked the bartender to call cab for him. The left time cab arrived and Ferns the Oasis. Some defendant, Harmon, later the Tom also left the Oasis. Ferns testified that in while the Oasis Bar he did not see Mr. Har- recognize mon and that he did not Mr. Harmon know or then or at the trial.
We next Mr. at 11:00 find Harmon about o’clock in the evening February 13th across the street Bar from the Oasis in in company stayed the Silver Bar with a colored man. He in approximately Dollar from 11:00 11:30 Silver to that evening. Two witnesses testified that Mr. Harmon in the was approximately Silver Dollar at this time. One witness said man, Harmon was with a colored another witness said that when standing she saw Harmon in the Silver Dollar he was down drinking glass at the bar end of the himself a of beer. The second witness testified she left Dollar the Silver Bar
243; Harmon tbat a.m., not sure 12:15 but 'approximately at was 11:30 approximately From bar at time. was still morning in the 3:20 a.m. night until p.m. a.m. that .to 12:15 absolutely silent as to February 14th the record competent was Harmon. No whereabouts of Tom during Harmon was time as where introduced period of time. 14th, City police Butte officers February
At 3:20 a.m. on Harmon on up Tom investigating prowler report, picked jail they charged him where South Street took Colorado might Harmon have being They suspicioned him with drunk. wholly unable to complainant but the prowler, been the complained. However, identify person she had of whom a.m., 9:00 prior from 3:20 a.m. until some time Harmon city jail charge. an intoxication was held in Butte on jail placed When defendant he was searched police change, possession and found to have his small sum of the exact amount be remembered whereof could arresting officers, also small bits of celluloid and a two *14 toy flashlight. him he These articles were returned to when was released.
Later, morning on the 14th, a colored man went into jewelry shop in uptown purchased Butte lady’s a small paid wrist watch and for same with two traveler’s cheeks. buying While the watch he conversed with the owner of the jewelry wherein, store according to the latter’s testimony, the colored man made conflicting various This statements. aroused storekeeper’s the suspicion and caused him to write down the license of number the car in which the riding. colored man was
Shortly thereafter this same man colored shop entered a hat purchased in Butte where he paid two hats and for same with During traveler’s check. transaction, the and while the col- ored man was countersigning the cheek, traveler’s shop- the (cid:127) keeper testified his attention was distracted and he failed to examine or even look at .the check until the colored man had shop. Thereafter, left his upon-examining check, the: the shop- the original signature and keeper suspicious that the became man did not by the colored countersignature affixed thereon the reported this fact Whereupon, shopkeeper match. the man had City jeweler The from whom the colored police. Butte suspicions to reported his purchased lady’s the wrist watch also police at reports made to the City police. Butte These two the February 14, 1958. approximately a.m., 11:00 up by police. picked Later that man was day, colored Tom Harmon. defendant, With him at the time was lady’s wrist possession man to be in colored was found jeweler day from the who purchased watch which he had that suspicions concerning the reported police his had so traveler’s checks. purchased wearing then one the hats
Tom Harmon was police sought shopkeeper. The the colored man from the They checks. con- to ascertain the true owner of traveler’s appeared signa- name on the tacted Malcolm L. Ferns whose upon them that line on Ferns informed awak- ture the checks. ening morning to locate some traveler’s in the he was unable change thought which he that he had checks and some small night before. with him when to bed the he went Harmon developed It that while inwas the Oasis Bar on evening February that Ferns entered the bar and “timbered;” part thereafter a owner of the bar called Ferns, upon a taxi for taxi, Malcolm who arrival proceeded directly was assisted thereto the driver who Street, apartment Ferns’ at 209 Colorado where at the entrance paid the his $1 Ferns driver cab fare the amount of apartment then entered his and went to bed. When he awak- morning, ened Ferns was unable to locate book of his money, whereupon telephoned traveler’s checks or the Oasis. He testified: *15 thing,
“A. The first I called the Oasis Bar and asked if by if swamper picked up chance a cheek book and he said nothing showing Secondly, there’s on the back bar. I called the I checks, Bank that lost stop' I them to Metals and told check book.” police not loss to the report
Ferns testified that he did his happened as to had nothing and that knew whatever what until he the Butte to the traveler’s checks was contacted Carter, police George and them that the colored informed man, countersigned Ferns’ passing had and been traveler’s police, Carter, and that they, checks had taken the colored man, custody possession into had found in merchan- his passing dise he had Ferns’ which obtained traveler’s checks.
There one testified that witness ease who while walking and her sister she down the street the 500 Street, on South three block Colorado which some blocks apartment, distant from Ferns’ one she found of Malcolm that checks; story Ferns’ traveler’s after reading a Butte newspaper concerning Ferns’ that traveler’s checks she de- city police. livered the check which she had found to the Butte Carter, man, the colored who admitted that he had in his possession, countersigned and that fraudulently he had passed on shopkeepers to various for merchandise, Butte traveler’s Ferns, checks of Malcolm L. took the witness against stand for the there State and testified the defendant If true, Harmon. Carter’s seriously which we doubt, then was, is, only but principal also a of the first order to alleged burg- crime of lary for which the defendant was then on trial. However, jurisdiction, under the established law this Carter alone guilt could not shift his admitted to the shoulders of Harmon. Carter’s insufficient, alone under law, our sustain conviction and unless produced until also there was independent placed some Harmon in Ferns’ apartment charged at the time for the unlawful purpose alleged.
Here, only evidence in the entire casé to establish Ferns lost his traveler’s checks and property as the result *16 Carter, principal tbe of- alleged burglary tbe the lost all but one' of up- wound with who accomplice Car- testimony of the possession. in his The
checks Harmon with implicates the defendant all that ter alone is Harmon now stands convicted. alleged burglary of which all he had taken or not not even know whether Ferns did money him taxi driver escorted any when the or of his with where Bar his home. Ferns did not know the Oasis him from Bar, left the when when he' Oasis his checks were traveler’s got he to bed or when home, when he went arrived at his he awoke, morning- morning. When Ferns on the next up the his unable to locate traveler’s big spree, his he was after assumption must that his checks and, acting- upon the checks they may Bar have been lost at the Oasis have been telephoned that establish- swamper, by the bar’s retrieved ment.
When once we exclude or delete us from the record before Carter, principal there independent any way remains not one iota evidence that in entering any manner Tom Harmon or connects with the apartment any grand house intent or whatever to commit petit larceny any or other crime. majority opinion separately lists nine numbered items testimony given by it asserts which corroborates the accom- plice An of such' items demonstrates the Carter. examination patent majority into fallen. error which has
First, majority say was in the “The accused victim’s Oasis Bar.” What presence when Ferns ‘timbered’ at the present partake-of plenty of others it? There were also “timbered.” As much can be Ferns generous windfall when bought for bar when Ferns drinks person at the said of each peo- other that three or four testified house. One witness there were five or six there, testified ple while another were Associa- “popped'”-for'the crowd.' Ferns others there when for cor- suspicion, but never may make for opportunity tion or drink- Harmon witb may Mr. It tend to connect roboration. burglary. certainly crime of tbe ing, bnt not with position was in say tbat accused Second, majority “Tbe tbe from tbe address tbe tbe room to learn location of victim’s not did tbe accused (assuming gave tbe driver Ferns taxicab in tbe it).” of evidence scintilla already know There is driver bis address gave taxicab tbat Malcolm Ferns tbe record place. time or Bar they Oasis or at while tbe tbe Oasis witness, LaChance, part-owner of It was tbe Walter taxicab who taxicab, driver Bar, and was who called the *17 apart- tbe door of bis and then to assisted Ferns to tbe vehicle same in tbe bar tbe Here, again every person bad ment. same information if to obtain tbe opportunity, any existed presented tbe out- respecting place Ferns’ of abode. Thus is informa- rageous proposition opportunity to obtain such present tion tend to each of those witb tbe com- would connect course, goes burglary. mission tbe without crime of Of many saying tbat no attaches to of tbe presumption such present or, assisted tbe Oasis Ferns “timbered” when when by driver, departed tbe tax tbe be tavern. tbe
Third, majority say tbe tbat “Each time accused was mark; carrying ‘loids,’ be was two witb blue arrested one arrest; police these at time of each tbe several officers saw tbe two, and accomplice testified tbe accused used a ‘loid’ carried infirmity Again patent one witb blue mark.” here places tbat there is no tbat tbe at Ferns’ evidence accused apartment apartment; tbat tbat be tbat shows entered such “loids” other than there made criminal use of one of tbe accomplice Carter, testimony tbe uncorroborated tbe supply tbe use of such of tbe corrobo- ration is barred tbe statute.
Fourth, tbe tbat majority say Carter, “tbe accomplice said Ferns’ be threw checkbook cover in tbe down Tbe street. police found it where tbe accomplice bad said be [Carter] it. These thrown two women found tbe fourth cheek in tbe neighborhood.” same We do not city consider some three “in away being
blocks same In neighborhood.” our simply following examination herein we record are correctly Judge Downey 'method outlined District in his jury No. 21 determining for from the Instruction testb. mony whether or not there is corroboration of the given by accomplice, George course, Edward Of Carter. Carter knew where rid he himself of Perns’ checkbook cover precisely and Carter knew the police where to take to recover it, but such not place evidence does Harmon at or Perns’ apartment, nor breaking does it connect with the Harmon entering apartment. of such
Fifth, say majority “The accused together were various Butte bars before after the time they of the burglary; together on shopping also ex- pedition day.” the following conclusions Such and statement are sustained this record now before court. By independent placed the defendant the Oasis Bar and the Silver Dollar Bar. In the Silver Dollar Bar the However, was with a colored man. a careful con- sideration of Carter’s testimony he, Carter, discloses that spent in drifting considerable time and forth back between the Silver Dollar Bar and bar vicinity another in that known as the Sil- Slipper. ver testified that never in the Oasis. The record before us discloses that if the defendant was with *18 night question, Carter at all on in only the it was while Car- ter was in the Silver Dollar Bar. Carter testified that he and the defendant were in the Dollar Bar Silver after the alleged burglary committed, is claimed to have been but the bartender on then shift at the Silver Dollar denied that either the accom- plice Carter or the defendant Harmon inwas the Silver Dob night lar that 12:30 after the hour of a.m. Never was it di- rectly established together that Harmon and Carter were on spending spree shopping expedition Carter’s and the follow- day. ing
Sixth, majority say Carter, the that accomplice “The said forged countersignature he Ferns’ [Carter] two of Ferns’ buy accomplice a (cid:127)checks to wrist watch. When the [Carter] major- again was arrested had the wrist watch.” Here the ity rely testimony accomplice use the Carter upon and the of they testi- when the statute commands that must exclude such mony independently and and consider the evidence examine n any testimony testi- accomplice of the Carter. While this mony accomplice, itself, implicate in might of the Carter the commission of con- some crime connection with his forgery cheeks, certainly fessed of Ferns’ it most does not con- Harmon, alleged burglary nect in the commission of an apartment by Ferns’ breaking entering and therein the nighttime.
Seventh, Carter, majority say accomplice “The said he used another buy of Ferns’ traveler’s checks to the accused a hat. accused, Harmon, When wearing arrested the hat.” While in proper might á case this something have n do receiving with the crime property might stolen and it have some forgery, connection with the crime but most assuredly has nothing establishing whatever to do with burglary crime of for which this defendant Harmon was then again trial. Here majority opinion both the State and the place upon testimony absolute reliance attempt prove breaking entry into Ferns’ apartment by All first, Harmon. Carter’s last time, and all the but the of a self-confessed accom- plice says the law of an ignored incompetent must be as 'until and unless there be cor- by independent non-accomplice testimony. roboration In other words, jury the record before us must be considered precisely and examined the members of this court though accomplice'Carter had testified in order never to ascertain requisite corroborating testimony. whether there be the Eighth, majority say, “The accomplice accused, McMann, together during the morning of their ar- rest.” All Carter, the record discloses in this regard is that man, company colored was seen in the of two white men and *19 This, Butte. riding the streets of dog
a small in a Cadillac on jeweler The daylight morning question. broad suspicions reported his lady’s wrist watch who sold Carter sold Carter the two police haberdasher who to the as did the countersigna- the haberdasher discovered hats when once forg- be a handed him Carter to ture on the traveler’s check the de- ery. all tend connect Now with what crime does this the defendant Certainly does not connect fendant Harmon? apart- entering Ferns’ alleged breaking and of with the crime of dog the small or the any it tends ment more than to connect Ferns’ alleged burglary of man in car white place of abode. say and the
Ninth, majority that the they acquainted” Harmon and that “served defendant “were Lodge.” time Prison at Deer together the Montana State and the accomplice Carter We fail to see how the fact that the acquainted” Harmon the fact that these “were or hundred other convicted company two in with four or five prison at persons, out their sentences in the State’s served Car- Lodge, Deer corroborates the of Ferns’ broke and entered charging ter that it was Harmon who 13, 1958, being February but two apartment night on the penitentiary. days from such state after Carter’s release majority opinion The basic essential facts overlooked are as follows: absolutely
There no evidence whatever in the record now before this court that the defendant was at or in Ferns’ ever apartment, any breaking or or entering occurred, thereof or that burglary the crime of other crime was there committed to obtain the belonging Ferns, traveler’s checks except given Carter, man, who, the colored believed, personally present if Ferns’ room at 209 South express Street for the purpose Colorado and admitted re- lieving money Ferns of his valuables. evidence is undisputed bright early morning February on the 14, 1958, witness possession State’s Carter was of trav-
n Mal- signature bearing the purchased'by cheeks eler’s *20 being fraudu- then Ferns, traveler’s checks B. which colm same decorating who, after countersigned Carter, lently then B. Ferns Malcolm countersignature forged with the n exchanged them jeweler’s store first in the merchandise, for In both etablishments shop. in the haberdasher’s and next That and unattended. person, in alone himself presented in others implicate from himself and to suspicion to divert he in case was and acts fraudulent scheme his dishonest and an- fit Harmon and hat the size to bought one caught, he does person still fit some other other of a size that would at or Harmon place the defendant nothing whatever convict, him of Street or at 209 South Colorado Ferns’ .room any pur- any for entering at time or breaking and such room pose. without Car- remains to haunt us that persists
The fact burglary com- that a was ter’s there no evidence checks, or that mitted, that Ferns not lose his traveler’s or did therefrom the pick pocket and take Carter did not Ferns’ while loot, carrying putting he into circulation which Ferns had ex- spending spree morning his after on on the he Ferns testified had vis- perienced large evening. a rather least bars; spent $120 ited and diverse that numerous n during that one evening; he did not know whether he had that that not retiring night; for the he did locked his door before that he not anybody apartment; did hear come into his his awakened from sound miss his traveler’s checks until he for miss them he saw no occasion re- sleep, and when he did Bar phoned the porting police. it to the Instead he Oasis inquire swamper any if the bar’s had found of the traveler’s checks which he at that time assumed he lost or left the bar. on burglary necessarily
To conclude that a was committed at all implies upon, that of Carter is relied believed weighed balance, contrary controlling to the rule applied of law must herein. which
Competent independent prove that would Harmon night February 13, the Silver Dollar
Bar with a colored man. prove That evidence would Carter was the colored man Dollar with Harmon the Silver Bar.
After absolutely Harmon left the Silver there is Dollar no whereabouts, evidence as company anything to his his else. nothing There is him would tend to connect with the com- any mission of crime during question. the time in The evidence that Harmon was with colored man in the Silver Dollar does suspicion not even raise a that Harmon was burglary charged connected with the or that he was connected with A suspicion crime. strong enough. however is not Our independent law demands that must evidence tend con- nect the implicate some which would defendant fact charged. in the crime
It is essential therefore that tending the fact to connect the defendant with the must crime be a relating fact to some act or fact is crime, which an element of the even though the cor- roborative evidence every be insufficient in itself to establish element of charged. the offense suspicion
Even might by that be raised the association of Harmon with the colored man in the Silver Dollar Bar would not be to support valid this conviction this because act only suspicious assumes a you nature after have heard and con sidered the testimony of Carter. Without testimony that nothing is more than two men standing in a white, bar one one colored. Mere association not sufficient sustain this conviction. Gangner, See v. State 130 Mont. 305 (2d) Pac. 338; Keckonen, State v. 107 Mont. (2d) Pac. 341, and State Searle, (2d) Mont. 239 Pac.
The cashing of checks traveler’s Carter does not im- plicate the defendant here nor to implicate tend him at all charged. the crime majority
The opinion weight attaches considerable to the fact that small pieces two of celluloid were found in pocket up a.m., picked 3:20 when, of defendant he was being with charged drunk. up following Carter, being picked
It not until after burglary, in a that afternoon, participating told a about story might police that there have been officers ascertained burglary committed. why of the bits
Without Carter as to how employed, nothing of celluloid were there but inanimate objects pocket precisely carried in like the Harmon’s celluloid containers found in carried most the card cases and billfolds professional today. business men of The two bits of cellu- suspicion loid they could arouse some could used crime, they necessarily commission of a but not tend to do this connect defendant the commission of a crime. majority opinion treats these small bits of celluloid two they
as special if are something they nothing when are Let inspect sort. the reader his own billfold and card case and ascertain how many cards, celluloid credit and celluloid con- for his lodge tainers membership various and club cards he constantly carries type that are the same material and as “burglar the so-called tools” which the had in his possession, adapted all of equally open- which are as well for ing the lock on a door were pieces the two found in Har- possession mon’s police. and then returned himto Ignoring here, as must, Carter, we the two pieces of celluloid then suspicion being even raise a do designed tools to assist committing burglaries any more than suspicion the same person, would raise a if found lawyer, judge. be he doctor or readily apparent
From the Carter, it is *22 principal he is a E..C.M. the crime described. sec- 94-204, tion reads as follows: persons
“All in the concerned commission a crime, of whether it felony misdemeanor, be a or they and directly whether com- mit act constituting offense, or aid and abet in its commission, or, present, not being have advised and encour-
254 or aged persons counseling, advising, commission, its and all lunatics, years, encouraging age children under the of fourteen contrivance, idiots, crime, or or any who, fraud, to commit force, or purpose for-the occasion the drunkeness of another causing who, by threats, men- any crime, of him to- or commit any aces, command, coercion, compel or another to commit crime, principals any are so crime committed.” testimony him to be only
Not Carter’s- establish does in the accomplice him be an principal but it also shows McKnight, glibly State v. (cid:127)crime he so described. See 816, 824, 825, cases cited. (2d) 281 Pac. and Mont. testimony from a tainted source accomplice of an comes The legislature and considered is of the character of.evidence en against by the sought protect unreliable and which Stephenson United 94-7220, supra. actment section See of (2d) 704, 705, A.L.R (2d) 702, States, 9 Cir., F. opinion majority in the are based reached The conclusions testimony upon assumption that the erroneous of be used examined principal accomplice, both an can This testimony is to see corroborated. this case if is law this state. not the law never been the has “A cannot 94-7220, law as stated in that conviction is section cor- he is testimony accomplice, be on the of unless had * * * by other without the aid evidence roborated * * Emphasis supplied. in a testimony is independent Until or introduced evidence accomplice is not even trial this nature of the the indi- only It the time when pertinent to the record. is testimony is tends pendent introduced which evidence with the commission of connect the crime only then then can testimony here, independently given, There no
considered. defendant, which tends to connect the with the commission charged competent, independent no testi- the crime since mony perpe- to show crime was ever introduced
255 trated. It must that is testimony be realized tbe of Carter entirely incompetent. testimony Carter’s then becomes the only testimony upon this which defendant was convicted. Car- ter’s from comes a tainted source and must be suspicion, viewed with and this defendant cannot be convicted this testimony on according provisions to the of R.C.M. 94-7220,
section supra. It can be seen that the law positively demands and the law requires that the defendant cannot be convicted unless the ac- complice’s testimony is corroborated.
With
Carter’s
out
this
is
case all
left
is
suspicion. Even the suspicion
very
is
weak but in
event
we know that we
suspicion
cannot convict on
alone. In State
Jones,
v.
317, 324, 325,
Mont.
(2d) 341, 343,
Pac.
“*
* *
court held
necessary
independent
lead
evidence
‘inference that the defendant
is connected
in a
way
criminal
with the commission of the crime.’ State
v. Geddes, 22
Mont.
919, 924;
Pac.
Spotted
v.
State
Hawk, 22
Mont.
Under our Constitution and statutes a defendant cannot be convicted on mere conjectures, probabilities, suspicions how ever strong as in some countries. majority opinion, in effect, overrules Jones, supra; State v. Keckonen, State v. supra; State Searle, supra; v. and State Gangner, supra, question of the required corroboration given by an accomplice. A liberty may man’s not be taken away without process “due of law.”
For stated, the reasons judgment of conviction should be reversed, the information ordered dismissed, the defendant Harmon discharged from custody and the cause be remanded to the district court for purposes. such