*1 287 P.2d Plaintiff-Respondent, Idaho,
STATE of
Floyd JOHNSON, Defendant-Appellant.
No. 8202.
Supreme Court of Idaho. 29, 1955.
June Sept.
Rehearing Denied *2 Blaine, Donaldson, W. R. Charles
James Boise, appellant.
Graydon Smith, Atty. Gen., W. R. J. Smead, Gen., Atty. Asst. Sharp, M. John Gen., Atty. Sp. Forbush, Asst. H. S. Pros. ; respondent. Atty., Driggs, for . returned to and building entered the club out, came each again carried a slot machine placed which he in the vehicle. The two men then got into the station away lights drove without to- Driggs, ward and did not turn lights on the until road, at a turn in the traveling after city about a block. SMITH, Justice. County sheriff Teton and his
Respondent charged appellant with bur- deputy, who also the marshal of glarizing Tetonia, the Tetonia Club in dur- Driggs, up set a road block highway on the early morning of December city at the north limits Driggs. No jury stood trial and a found him appeared tracks in the fresh snow on the guilty burglary degree. of the first He highway. They were looking for a appealed judgment from the of conviction wagon and when such a vehicle came along and the order denying his motion for a new the driver failed to heed stop signal trial. *3 speeded up but and ran the road block. entry The of the Tetonia Club and the deputy The then shot at and hit the front taking four slot machines therefrom tire of the wagon station which, after by Berry were Mr. and living observed Mrs. traveling about 440 feet further down the feet about 130 from the front of and across road, went out of control on the west side building, street from the Tetonia Club highway, of the ran into a cement culvert by who notified law enforcement officers or abutment and came stop. to a The two telephone entry. of such cautiously approached officers vehicle, M., 29, o’clock A. a 1952 wagon, About 4:30 December Pontiac station which had 1952, stormy snow, weather during sight with a been out of their for a short time and lights, wagon, without had stopped. station driven on distance after it The deputy road, hand footprints its left side of the driver’s sheriff observed human leaving stopped point right a almost across the at street the vehicle on its hand They side. out; got pinned Two men a man from the Tetonia Club. found the front seat pushed appear they carrying any did not had been which ahead a load of They crossed the street and without slot machines from tools. seven behind. This building; Fedder, entered club short- was Donald Lee hesitation man who was building, they injured. out of the each with The two ly came officers took him to the county he carried jail, which across the which a slot machine consumed about twenty wagon. put They the station into minutes. street lock, frame, two re- metal in
When the others a officers the door part lock, sprung. turned to the station of the wrecked deputy human observed an additional set of A conducted for the man who search was approach- footprints the road crossing right wagon by had left the station its side, and ing the car left hand from the door, day leaving hand tracks. Late in the right to the hand going then the car around man, appellant a of December sweatshirt, coat, cap and A door. brown a herein, apprehended sagebrush in a previously, which the had observed officers field and one-half about five miles south interior of the car. gone were from the per- Driggs. He had about on $800 tracks attempted The to follow the officers son. a up and set road block. gave for a time but The facts and foregoing circumstances 29, 1952,
During day of December dispute. are not in ascertained sheriff and officers other undisputed, as dis- Additional well as taken from five slot had been machines circumstances, puted, will now be facts Club, nothing else therein Tetonia but light assign- reviewed in the One Williams owned had been disturbed. error, that the insuffi- ment of evidence is contents, five including the the club and its jury, the verdict of the cient sustain machines, at the and his assistants urged in his motion machines as five club identified those new trial. in the station machines found the seven anything had to do No one who wagon. behalf, Appellant, in his own testifying club, owner, manager being with stated that he was the federal authorized sale, arranged any had and the bartender operated in coin amuse- government deal any disposition of or other transfer devices, dealings ment and had slot machine Only manager slot machines. club’s previous during with and a Fedder two keys to the club. The and bartender months; half that with he left about $800 during bartender, club when he cleaned Sunday, with December Boise Fedder 28, 1952, afternoon, saw Sunday December P.M., about 3:30 to 4:00 o’clock driv- as- officers also machines therein. wag- ing his mother’s 1952 Pontiac key door front would not certained on, machines, buy *4 arriving slot Idaho pad- and lock the in the front door work Falls at that then evening; about 9:30 had been twisted off the back door on lock stated, man, appellant met Fedder a whom broken; led from the back door know, tracks appellant not did had not met and marks were found highway; meet, the to never did and that Fedder and that around casing, appellant; the door made of hearing man conversed out front door and on appellant instrument, he, informed general in then Fedder that area hard by a vicinity upon appellant “the trans- leave the appellant, to in on decided to was not somebody to Appellant drive since he knew be follow- then decided to would action”. Markham, man; his brother- made Driggs and visit one the tracks this other brother; go he, if appellant, man would other that would be detained in-law’s car, gray there, previously a 2-door he had in his own found since twice Driggs to burglary, been convicted and sentenced for Chevrolet. again during County, once in Ada then he and Fed- Appellant testified that Portland, in Then during Oregon. Driggs, there about arriving der drove to appellant, stating who not know did P.M., that December 11:30 was, to man nevertheless volunteered man, in waiting in his Chevrolet other a trail” him him to “make and invited car, following cafe, his a drove front appellant’s place Plymouth take in car. wagon; Fedder in the station appellant mysterious Ply- Here the stranger and north end of out at the appellant got that car, were, disappear mouth if such there he stated Driggs, which city of from the record. house; then vicinity of the Markham in the early morning stated that in about Fedder, stating he be back would pair aforesaid he was wearing a of dress hour, toward the station drove an trousers, a coat dress and no hat. He then Tetonia, followed the other man ostensibly up traced his movements Chevrolet, if such Here Chevrolet. highway station wagon, where he the record. was, disappears from there coveralls, ; obtained his cap brown coat and testifying, further stated that Appellant, returning his back to the vehicle after he finding house and the Markham he went yards, get about a gone hundred his try any occupant dark, to arouse did sweatshirt and flashlight; circling his disappears Here Markham therein. directions, around various including Appellant then sat down in a the record. hand-over-hand going top along of a nearby stayed Plymouth where he fence, thereby to throw officers off his shots, time, according he heard until tracks; hiding in a barn and in a re- sheriff, A.M., deputy 5:12 frigerator crate therein during daytime appellant morning; got and then following 29th, of December and his traveling afoot Plymouth and observed car a out apprehended during until the evening of who acted like he was approaching man day sagebrush field about five winded; appellant called to hurt and miles Driggs. and one-half south of recognized him as the man he had him and Falls; upon Appellant, seen being apprehended, this previously ad- sheriff, that he and Fedder had remark to the “My mitted his told man name hurt; I Johnson; my that there- want to attorney and Fedder was see wreck *5 County license During its testi- was shown Ada his how much is the bail.” showing why' number, went appellant asked he was found vehicle mony was automobile, “Emma the registration its to be in name the to which wrecked back to coat, name), get my following the answered, (with went back to Malone” he “I “F. J.” In stated, appellant who, mother. being appellant cold.” When it was appre- the station being envelope containing after the transported Driggs, same him, wagon’s registration, “A fine hended, a remarked to certificate of witness leaving County off certifi- you are, running registration found buddy the Ada car,” appellant’s to which remark cate of buddy the your in trailer. three according to appellant made answer ap- The station when Pontiac out, get him he claim- witnesses, “I couldn’t County prehended had on it Fremont broken,” appellant ad- leg was ed his parties stipulated plates, license which the mitted, made such state- might “I have” City Teton December were stolen at thought he the what When asked ment. the December Noth- morning of wrecking the the about lady think would appears relating in the record to the pretty bad
car, appellant it looked admitted wag- plates belonging license to the station it. last saw to him the time on, appellant nor last when or where drove appellant wore when plates The coveralls which its lawful license vehicle with by Mr. identified apprehended were attached. the like or similar to Berry looking as Mrs. Appellant the alibi that he advanced men, observed worn one of coveralls City could been Teton at either not have them, from machines taking slot stipulated when the times Fremont early morning of Decem- Club the Tetonia County plates license were stolen at Teton 29, 1952. ber City yet had not because he as left Boise. appellant’s de- placed attempted prove deputy by proof such alibi sheriff He Plymouth car, as dated location of a check December $5.00
scribed
place
where
payable
(Def.
from
made
to cash
2)
three blocks
Exhibit
about
No.
Ap-
stop.
to a
wagon came
paid
ap-
which the maker testified she
Pontiac
deputy
date,
the pellant
found
support-
asserts that
the afternoon
pellant
place
appellant
as
testimony
car at
Plymouth
ed
wife.
be; but the record shows
it to
had described
respondent
criticizes
intro-
deputy placed
locality,
only,
evidence,
ducing certain
claiming unwar-
car,
.but
described
may
ranted
inferences
drawn therefrom.
locality.
points
vice-grips
He
to the
(State’s Exhibit
n
County registration
The 1952 Ada
“O”)
padlock
certi- No.
broken
(State’s
station wagon,
“N”);
wood,
ficate of
Pontiac
Exhibit
piecés
No.
wood,
again,,
pieces of
but
the marks
the other
one
the front door
,iru
evidence
substantiating
did not offer
the Tetonia
casing of
from the front door
premises.
indentations
showing
Club
the marks or
Exhibits
impressed
(State’s
into the wood
“M”,
“I”,
“H”,
State’s Exhibits Nos.
certain
two
“I”),
“H”
and the
Nos.
“N”,
properly
“P”
intro
“O” and
were
*6
of
front seat
taken
under the
tools
from
in
There was sufficient
duced
evidence.
Nos.
(State’s Exhibits
wagon
the station
exhibits, the bur
connection between the
Respondent
introduced
“N”).
“M” and
possession
glary and the
the tools
of
testimony
by the
in evidence
such exhibits
“N”,
(State’s
“M”,
“O”)
and
Exhibits Nos.
witnesses,
further
without
identifying
of
evidence, inasmuch
to admit the same in
explanation.
the tools
so admitted were
themselves
develop capable
entry
chose to
their
Appellant’s
making
counsel then
and
anything
vice-grips had
admission
not
Kleier.
error. State v.
whether
padlock, in that he
breaking
69 Idaho
discrepencies circumstantial in the sheriff’s proved may acts and appellant refers, immaterial. One’s intent his become conduct, Moreover, replete ap- with and such the usual and custom the record is Kleier, ary v. contradictory proving mode of intent. State pellant’s testi- evasive and supra; parte Seyfried, some Ex 74 Idaho mony; particularly illustrative are made 264 P.2d evasively he he admits statements evasive, upon apprehended; his being conflict, evidence is in While the explanations re- instances, contradictory substantial, competent there is sufficient tracks, his where- clothing, his lating verdict, evidence to sustain the stopping up to a short time after abouts question exclusively fact was one relating to the wagon, of the station jury. jury having passed on the person, whom mysterious third claimed facts, competent being there substantial met didn’t know. never jury’s verdict, evidence to sustain improbability of Appellant points to the appeal. same will disturbed on State not be uninjured had been his remaining 499; Steen, P. v. v. State stop. He to a when came Hart, 40 Idaho State P. speed an estimated points high its Kleier, supra. block and per as it ran the road hour miles *7 Appellant assigns error of the trial court stop cement against a sudden coming to a witness, permitting the Fed- Donald Lee re- culvert, with considerable abutment or der, privilege to assert his of constitutional vehicle; he omits but damage to the sultant refusing testify, I, of to under Article 13§ that the the fact argument his of the Constitution of the State Idaho traversing an stop, after to a came Fifth Amendment the the of Constitution of 440 feet. additional States, ground the on the his United testimony may tend to incriminate him. jury province of
It is within
testimony of
disbelieve
or
to believe
involved in the
Fedder was
here
matters
testi
portion of such
witness,
any
any
or
as is shown
the rec-
under consideration
exclusive
jury are
herein;
before,
mony,
shortly
since
ord
had been
9-201;
I.C.,
credibility.
his
§
of
judges
convicted of the crime of burglary
tried and
Cacavas,
538, 44
55
P.2d
perfected
Idaho
degree.
appeal
v.
of
first
His
State
to
cited;
therein
State
court,
1110,
judgment
conviction,
authorities
from the
this
of
192;
359,
disposed
181
Hansen,
P.2d
Idaho
of as of the
67
had not been
time of
v.
270,
Davis,
appellant.
0
purports
give
to
prosecutor;
only
cial
the con-
him and that
incriminate
to
tend
made
certain statements
the substance of
Fedder
attach.
privilege cannot
stitutional
argu-
his
prosecutor
of
in the course
charge
acquitted of the
yet been
not as
and uncer-
ment, and
indefinite
certainty
such is too
and no
burglary,
degree
first
light
in the
tain
court to consider
charge
for this
conviction
his
attained
Peck, 14
error. State v.
Idaho
of reversible
was still
action
criminal
final.
Gruber,
515;
712,
95 P.
v.
19
testimony
State
or
him. His
against
pending
692,
in indictment on which to toxicating will not an intended possessed appears entry of steal charge, if it that the bill after unlawful such a contrary which was of a character the issue of the owner thereof to both the fed- credit congress; eral and laws and not the authorized an act of state therefore was not subject Caridis, Cal.App. 166, larceny. People 154 of The National Prohibi- 29 1061, Act, 39, dis- tion 27 made it P. the California Court U.S.C.A. unlaw- wherein § any liquor, possess proper- ful to have tinguished lottery evidencing an or or a ticket subject ty designed liquor, for indebtedness, not be a of which could manufacture in larceny, act, proper- consid- violation of the ticket “no matter of that ty paper possessed perhaps rights liquor shall in piece any of exist or ered as a value, value, property.” appellate The California which however court of an intrinsic n small, wrongful made subject make exhaustive to its research of would suffice matter; larceny. reasoning, adversely its petit answer- (cid:127).taking contentions, as accuseds’ follows: n v. Village cites State 513, 328, 265 City, Idaho P.2d Garden that li- “The authorities which hold case, this court 335, wherein ruled civil a subject quor possessed cannot so be the * * * are included within machines slot that proceed upon burglary, prohibited by purview Article of lotteries that, may not a theory since one have of the State of Constitution III § therein, property property right ch. Code Title and Idaho stolen; that, inasmuch itself cannot-be particularly points ruling legitimate or it have no lawful can property right therein, “There is no owner, without inker- it is value to its [slpt herein devices gambling machines] ready to We are not accede ent value. described.” Regardless of reasoning. its to this value, appel- legitimate or lawful <. City Garden case ruled court n n sufficient it of inherent lants considered rights ma- exist slot property no subject of lar- make it the value to by public a sold officer which can chines * * * ceny. also, auction; it is the use of public .at law; violates the but the (cid:127)the devices upon attention “Focusing, our property of which the whether «question, that, legal no because it has fiction sale, purposes use certain for possession, all, at value, we must has no value subject unlawful, be the matter could twas. fact eyes illegal that its our close involved. was not Jarceny, solely term (using value the. - distinction) is such as v. Odenwald, 104Cal.App. purpose People . In accused, greed lust create new arouse the P. P. vicious, dangerous and type of burglary,:.contended; criminal, in- that'the con'."victed
11
thing
sell or
person
such a
parlance
having
designated in common
the one
it,
it
dispose of
or
use
otherwise
for
and rob
he steal
‘hijacker.’
as the
Can
purposes,
though it is
certain
and even
impunity simply be-
pillage
with
possessed
unlawfully
time of the
at the
cannot
object
of his search
cause
kept
posses-
taking
illegal
used for
subject
because
or
lawful
be
of
made the
purposes
possession
or because
thereof
question shocks our
sion
sale? The
expressly prohibited by
is
law. The
society,
pro-
stabilized
for
sense of
agree-
authorities are
substantial
denouncing bur-
laws
tection of which
ment that such facts do not affect the
have been
glary and like offenses
character of
property
the article as
adopted.”
may
subject
larceny.
which
be
of
reasoning in State
Schoon
v.
And
see
* *
*
Thus
gambling paraphernaliar
756,
562,
over,
P.
758:
211
122 Wash.
possession
is prohibited,
which
of
punishes
wrongful
liquors,
“The state
intoxicating
outlawed or
personal property belonging
of
taking
made contraband
statute, are all
possession of
property
another be-
to or
to an extent
to sat-
sufficient
majesty
against
isfy
requisites
offense
subject-
of the
cause
for the
of
laws,
inherent
Moreover,
because of the
larceny.
of its
the fact that
criminality
act,
possessor
of
wickedness
of such an article has no en-
wrong
done
because of
property
well as
rights
forceable
therein does
property
whose
require
contrary
individual
not
to the
rule. The article
way,
subject
the state
may
Stated
another
larceny
taken.
be the
notwith-
larceny,
larceny
it is
express
because
punishes
standing
statutes to the effect
escape,
may
property rights
it
no
and,
guilty
not
shall exist
illegally
such
personal prop-
possessed,
articles
since
any form
will treat
purpose
statutes is
having val-
value as
erty having actual
limit
rights
possessor,
civil
larceny, notwith-
purposes of
for the
ue
liability
the criminal
(Em-
others.”
for the
may
unlawful
it
be
standing
phasis supplied).
possession.”
it in
have
possessor to
State,
Smith
See
253,
187
v.
Ind.
118
question raised
A discussion
L.R.A.1918D, 688;
954,
N.E.
v.
Osborne
weight of
great
indicating the
State,
717,
115 Tenn.
State parte Seyfried,
Ex 264 P.2d
The examination of the record as a
whole, light considered presents reversible error.
assignments, no judgment is affirmed. KEETON,
TAYLOR, J.,C. POR- ANDERSON, JJ.,
TER and concur. Rehearing
On Petition for
KEETON, Justice. appellant con- rehearing petition for
In a questions the wit- certain asked
tends answered, Fedder, could tend to if
ness Hence his refusal witness.
incriminate court, to failure of the
to answer answer error. witness
order the contention re-examined
I have merit. With- has opinion
am of petition elaboration, I think the further
out granted. rehearing should