Oxenberg v. State

• Decision Date: 16 May 1961
• Docket Number: No. 19,19
• Citation: Oxenberg v. State, 362 P.2d 893 (Alaska 1961)
• Parties: Bernard OXENBERG, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 893

362 P.2d 893

Bernard OXENBERG, Appellant, v. STATE of Alaska, Appellee.

No. 19.

Supreme Court of Alaska.

May 16, 1961.

Rehearing Denied June 29, 1961.

C. L. Cloudy, Ziegler, Ziegler & Cloudy, Ketchikan, Josef Diamond, Lycette, Diamond & Sylvester, Seattle, Wash., for appellant.

Ralph E. Moody, Atty. Gen., of Alaska, Howard P. Staley, Dist. Atty., Ketchikan, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Associate Justice.

A Ketchikan jury found Oxenberg guilty of the crimes of first degree arson and burning a building with intent to defraud insurers. On this appeal there are various assignments of error--the principal one being the trial court's denial of Oxenberg's motion for a judgment of acquittal. The basis of the motion was that the evidence was insufficient to sustain a conviction because of the lack of competent corroboration of the testimony of an alleged accomplice.

The Independent Salmon Cannery building at Ketchikan was destroyed by fire during the early morning hours of October 3, 1958. Elvin Sahlinger, who had fished for Independent, confessed that he had set the fire with gasoline which he had poured on fishing nets stored in the building. He was convicted of arson on a plea of guilty and received a suspended sentence.

As a witness for the prosecution Sahlinger testified at length regarding the events surrounding the incident. The sum and substance of his narrative was that he had set the fire at Oxenberg's request in consideration for the latter's promise to pay him $2,000. The government produces a quantity of evidence in an effort to corroborate Sahlinger's testimony. It consisted chiefly of the following:

(1) The cannery building was insured.

(2) The fire was of incendiary origin.

(3) The Independent Salmon Cannery was owned by Samuel Oxenberg, appellant's father. The appellant was the only member of the family who took an active part in the management of the corporation. He acted as president after his father's death, signed many papers in that capacity, and executed and submitted to the insurance companies proof of loss with respect to the destruction of the cannery. He had an expectation of sharing in the distribution of his father's estate, the assets of which presumably would have been enhanced by the proceeds from the insurance on the cannery building.

(4) For two years preceding the fire, Independent had operated at a loss. Its annual salmon pack had dropped from 35,000 cases in 1956 to 13,000 in 1958, despite the fact that the total Southeastern pack in 1958 was greater than in 1956. Expectations for fish in 1959 were not good. The fish traps could not operate after 1958, and for various reasons by the fall of 1958 the fishermen upon whom Independent had relied for its supply of fish had dwindled in number to the point where the likelihood of a successful cannery operation was remote. During the 1958 season Independent was short of cash, and a number of substantial bills had not been paid.

The government points to these things as giving rise to a motive for destroying the cannery building--i. e., to close off a business operation where the assets of business had become seriously depleted and where the outlook for the future was bleak.

(5) The cannery accountant discovered the fire at approximately 2:30 a. m. He ran to Oxenberg's room in the cannery building to awaken him, and found him in bed wearing shorts and an undershirt, with the light on in the room. The accountant told Oxenberg to get out as fast as he could (without stating that there was a fire), and Oxenberg sat up in bed and asked if 'we were on fire.' The fire could not be seen from Oxenberg's room.

The government argues from this that a jury might reasonably have concluded that this indicated Oxenberg's guilty knowledge, and served to corroborate Sahlinger's testimony that Oxenberg had planned the conflagration.

(6) On the date preceding the fire Oxenberg exhibited impatience and irritation with several fishermen who were working on their gear following the close of the fishing season. One fisherman was reprimanded for attempting to hoist a dripping wet seine net in a second story window of the building for storage. The state argues that a jury could infer from this that Oxenberg was concerned about the floor getting any wetter than it already was, for fear it would not burn that night.

The same man, who had been a satisfactory fisherman for Independent for a number of years, was told by Oxenberg to move his nets and gear to another cannery, and if he did not that Oxenberg was going to hurt him. The inference here, according to the State, is that the 'hurt' would be the destruction of the fishing gear.

Two fishermen were not permitted to enter the cannery to take showers at about 5 to 5:30 p.m. on the day preceding the fire--Oxenberg stating that the cannery was being locked up. Apparently, this was an unusually early hour to close the building during the period of the year when fishermen were working on their gear. The state asserts that this could create the inference that Oxenberg wanted to get everyone out of the building early so that preparations could be made for the fire.

(7) Independent had been delinquent in payment of its utility bills throughout the summer and fall of 1958, and at the time of the fire owed over $1,900. Demands made for payment from time to time had been unsuccessful. On the day of the fire the utility company informed Oxenberg that if payments were not made immediately a claim would be submitted to the insurance company. Oxenberg promptly paid $1,000 and agreed to pay the remainder within a week. The state contends that a jury could properly interpret Oxenberg's anxiety and actions as showing a consciousness of guilt--that is, his unwillingness to have the insurance companies know of the true financial condition of the cannery.

(8) Miscellaneous groceries, junk and other items that had accumulated in the cannery over a period of years were sold at Oxenberg's direction on the day preceding the fire for over $400. Oxenberg showed concern that the money from the sale be immediately deposited in the bank. The jury could infer from this, the state argues, that Oxenberg was trying to obtain every bit of possible cash out of the cannery before the fire, and did not want the proceeds from the sale of those items to be destroyed.

(9) According to Sahlinger's testimony, a man named Muller was an accomplice of Oxenberg in planning the fire. Evidence was introduced establishing that after the fire Muller gave money to Sahlinger in varying amounts on seven different occasions. The state maintains that this serves to corroborate Sahlinger's statement that Oxenberg had told him, in regard to his compensation for starting the fire, that Muller would take care of him 'on the money part.'

1. Corroboration.

The principal question here is whether there was evidence sufficient to satisfy the statutory requirement of corroboration of an accomplice's testimony. ¹ In submitting the case to the jury, the trial court instructed them on that point as follows:

'* * * In order for you to determine whether the other evidence in the case corroborates Sahlinger's implication of Oxenberg, you must first put all of Sahlinger's testimony from your mind and then review the evidence that is left in the case to see if it tends to connect the defendant Oxenberg with the crimes charged without reference to the testimony of Sahlinger. If this remaining evidence is as consistent with the innocence of defendant Oxenberg as with guilt, you must acquit him. If it does no more than raise a suspicion, no matter how shrewd or well founded, that defendant Oxenberg might be involved in these crimes, you must acquit him. There must be more than mere conjecture on your part that the defendant Oxenberg is connected to these crimes before you can find that this remaining evidence tends to connect him to them.'

Oxenberg has no quarrel with this instruction. He asserts that it evidences a proper construction of the statute--that there is no corroboration unless the evidence offered, considered by itself and not in relation to the accomplice's testimony, is consistent with guilt and inconsistent with innocence. ² The point he makes, however, is that all of the government's evidence, exclusive of Sahlinger's testimony, was consistent with innocence, and not with guilt; and therefore, there was no evidence sufficient to constitute legal corroboration. Thus, Oxenberg contends that it was error for the court to deny his motion for a judgment of acquittal and to submit the case to the jury.

The requirement of corroboration was based historically on the assumption, or suspicion, that the accomplice might expect to purchase immunity from punishment by falsely accusing and procuring the conviction of others. ³ Implicit here was the assumption that the accomplice was not to be trusted in the story that he told. The word 'corroborate' means to strengthen; to make more certain; to confirm. ⁴ It would seem logical, then, to hold that evidence corroborates when it induces a rational belief that the narrative of the accomplice is a correct one; when it dispels the assumed notion that he was an inventor of facts and incidents. If it does this, then the element of distrust is removed, and the object of the statute is accomplished.

In determining whether there is evidence sufficient to inspire the fact-finders with confidence in the story of the accomplice, it is impracticable to require that what the accomplice has said be put aside and that the other evidence be examined alone to see if it 'tends to connect the defendant with the commission of the crime.' ⁵ We are obliged to observe the terms of the Alaska statute. But its language does not provide, as in a Montana statute, that the other evidence be considered by itself and without the aid of the testimony of the accomplice ⁶; and we are not...