State v. Bassett

• Decision Date: 09 August 1963
• Docket Number: No. 9161,9161
• Citation: 86 Idaho 277,385 P.2d 246
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Carlos BASSETT and Buell Warner, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 246

385 P.2d 246

86 Idaho 277

STATE of Idaho, Plaintiff-Respondent, v. Carlos BASSETT and Buell Warner, Defendants-Appellants.

No. 9161.

Supreme Court of Idaho.

Aug. 9, 1963.

Rehearing Denied Sept. 19, 1963.

John R. Black, Pocatello, for Carlos Bassett.

Louis F. Racine, Jr., Pocatello, for Buell Warner.

Allan G. Shepard, Atty. Gen., R. La Var Marsh, Asst. Atty. Gen., Boise, Eugene L. Bush, Pros. Atty., Idaho Falls, for respondent.

KNUDSON, Chief Justice.

The information in this case charged that on or about the 11th day of June, 1961, appellants (defendants) did wilfully, intentionally, feloniously and unlawfully take, steal and carry away certain personal property belonging to another, to-wit: a Hereford steer of the value of more than $60.00 lawful money of the United States and the personal property of one A. C. Olson, with the intent then and there to permanently deprive the said A. C. Olson of his said property.

Following a trial the jury returned a verdict finding each of the defendants guilty of grand larceny as charged in the information. Appellant Warner was sentenced to serve not more than ten years and appellant Bassett was sentenced to serve not more than five years in the Idaho State Penitentiary. Said sentence as to appellant Bassett was suspended subject to the terms of the court's Order of Probation dated and filed February 8, 1962, which provides, inter alia, 'that said defendant shall pay the costs involved in the prosecution of this action in the amount of $677.74' and 'that the defendant shall serve 60 days in the Bonneville County jail, which sentence shall be served at any time during this probation.'

Appellants regularly filed their joint motion for a new trial which was denied. This appeal is from the judgments of conviction and the order denying appellants' motion for a new trial.

A substantial portion of the State's evidence consisted of the testimony of one Allen Eugene Beckstead, an admitted accomplice. Appellants state that their main contentions on this appeal are (1) that the evidence is insufficient to show a proper corroboration of Beckstead's testimony and (2) that the verdicts of guilty were the result of erroneous and misleading instructions.

We shall first consider appellants' contention that the State failed to corroborate the testimony of accomplice Beckstead which contention is involved in assignments of error Nos. 1, 2, 7 and 8.

I.C. § 19-2117 provides:

'Testimony of accomplice--Corroboration.--A conviction can not be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.'

It is not necessary that there be corroborating evidence concerning every material fact as to which the accomplice testified. The statute permits convictions upon the testimony of an accomplice with the limitations that the accomplice shall be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and hence the corroborative evidence must be independent of the testimony of the accomplice and connect or tend to connect the defendant with the commission of the crime charged. State v. Brake, 99 Or. 310, 195 P. 583; State v. Gillum, 39 Idaho 457, 228 P. 334; State v. Proud, 74 Idaho 429, 262 P.2d 1016; State v. Orr, 53 Idaho 452, 24 P.2d 679. Corroboration of an accomplice need only connect the accused with the crime, it may be slight, and need only go to one material fact. It may be entirely circumstantial. State v. McCandless, 70 Idaho 468, 222 P.2d 156. The jurors are the judges of the weight and credibility of the testimony under proper instructions.

It would unduly extend this opinion to attempt a detailed statement of the State's evidence in this case, however following are some facts and circumstances which were established by evidence independent of that given by accomplice Beckstead, from which the jury could reasonably conclude the appellants were connected with the commission of the crime.

The steer involved in this case was killed on what is referred to as the Klossner ranch. The hide and other remains were found by Earl Sibbetts on Tuesday morning, June 13, 1961, approximately 20 miles east of the Klossner ranch in a secluded area not visible from the roadway. It is undisputed that the hide bore A. C. Olson's brand. Mr. Sibbetts testified that there had been only one rain storm in that area between the 5th and 13th of June, which occurred the morning of June 12th; that when found on the ground, the irregular depressions in the hide were filled with water, which would fix the time of death of the animal as being prior to the rain storm which occurred on the morning of June 12th. A Hereford steer answering the description of the one involved had been seen grazing on the Klossner ranch a comparatively short time before June 11th. The witness Beckstead was employed by Klossner and on June 6, 1961, Mr. Klossner employed a neighbor Tom Smith, to work with Beckstead mending fences. Mr. Klossner left his truck in Beckstead's possession for their use. The truck was identified as a 1959 Ford 3/4 ton turquoise colored pickup, equipped with a metal stock-rack. Mr. Sibbetts testified that he and Beckstead were never separated between the 6th and 10th of June at 2:00 P.M., except on one occasion for a period of 2 1/2 hours. Paint scrapings taken from a hoof (part of the remains of the steer) and scrapings from the Klossner pickup were compared by the Federal Bureau of Investigation and found to be identical. Impression of a pneumatic tire found in the earth at the Klossner ranch at the spot where the steer was killed compared with the impression of one of the tires on the Klossner pickup and was found to be identical in rib-width and tread design. From these facts the jury could reasonably conclude that the aniaml was killed after 2:00 P.M. on June 10th and that the Klossner pickup was used to transport the dead steer from where it was killed to the area where its remains were found.

A number of witnesses testified that they observed the witness Beckstead at different times between 2:00 P.M. Saturday, June 10th and 1:00 P.M. June 11th from which the jury could reasonably conclude that the only opportunity Beckstead had to use the truck in the commission of the crime was Sunday afternoon, June 11th.

It is undisputed that the appellants and Beckstead were in the South Fork Lodge in Swan Valley, which was being operated by appellant Warner, at 1:00 P.M. on June 11th. The testimony of appellants and accomplice Beckstead is conflicting as to the time they left the Lodge--appellants contend that they did not leave until 5:00 P.M. and Beckstead testified they left at 1:30 P.M. to poach deer or elk on the Klossner ranch and after having shot the steer they returned to the Lodge at sunset. It is undisputed that the three men, appellants and accomplice Beckstead, were seen by three boys in the Klossner pickup at about 3:45 P.M. Sunday, June 11th, six or eight miles from the Klossner ranch; that the boys had a conversation with them in which deer and elk were mentioned. At approximately 5:45 P.M. the same day said boys, while in a cabin on the Klossner ranch, heard the truck, occupied by the three men, stop nearby where its occupants carried on a short conversation among themselves and then drove away. Evidence was introduced to the effect that because of the condition of the country roads a round trip between the Lodge and the Klossner ranch would require approximately four hours. The foregoing evidence is amply sufficient to satisfy the statute requiring corroboration of the testimony of accomplice.

Appellant Bassett contends that his motion to dismiss and motion in arrest of judgment should have been granted for the reasons (1) that the district court at Bonneville County did not have jurisdiction and (2) that there was no evidence of criminal intent on his part.

Evidence was introduced that during Sunday afternoon, June 11th, Beckstead and Warner decided to drive to the Klossner ranch to poach deer or elk; that Warner placed his rifle, a knife and tarpaulin in the truck and invited Bassett to go along. Enroute the truck broke down and while they were repairing it the three boys hereinbefore mentioned drove up and stopped. During a conversation with the boys inquiry was made of them as to whether they had recently seen deer or elk in the area. That after the truck was repaired they proceeded to the Klossner ranch and looked for deer and elk. Being unsuccessful in one area they drove toward Homer Creek, the area where the steer was shot. When they were approximately 40 feet from the steer, Warner told Beckstead to stop the truck immediately following which Warner shot the steer. Each of them, appellants and Beckstead, helped to load the undressed dead steer into the Klossner truck; they then drove to the secluded area where the steer was dressed, following which they took the meat to the South Fork Lodge in Swan Valley, Idaho. The steer was shot on Klossner's ranch in Bingham County and transported in the truck to the Lodge in Bonneville County.

'Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another.' I.C. § 18-4601.

I.C. § 19-309 provides:

'When property taken in one county by burglary, robbery, larceny, or embezzlement has been brought into another, the jurisdiction of the offense is in either county. * * *'

The intent required is the intent to deprive the owner of his property. Such intent must exist at the time of the wrongful taking or stealing. State v. Hopple, 83 Idaho 55, 357 P.2d 656; State v. Huckinson, 71 Idaho 82, 226 P.2d 779.

Principals in the commission of a crime are...