State v. Broell
| Citation | 286 P. 1108,87 Mont. 284 |
| Decision Date | 19 April 1930 |
| Docket Number | 6623. |
| Parties | STATE v. BROELL et al. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Park County; Benjamin E. Berg, Judge.
Carl Broell was convicted of larceny, and he appeals.
Affirmed.
James F. O'Connor, of Livingston, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
By information duly filed, defendant Carl Broell and his brother William were jointly charged with the larceny of three hogs the property of Laurent Sarrazin, in Park county, and, on their pleas of not guilty, were jointly tried. At the close of the state's case, verdict in favor of William Broell was directed and the case dismissed as to him. Evidence on behalf of Carl Broell was then adduced and, both sides having rested, this defendant moved for a directed verdict; the motion was denied, and thereafter the jury returned a verdict of guilty of grand larceny as charged, and judgment of conviction followed. Defendant moved for a new trial, the formal notice thereof reciting all the grounds permissible under the statute (section 12048, Rev. Codes 1921) and following the exact words thereof. The motion, in so far as it is based on "new evidence," is supported by affidavits. The motion was overruled.
Defendant has appealed from the judgment of conviction and from the order overruling his motion for a new trial. But two specifications of error are made: The first is predicated on the denial of the motion for a directed verdict; the second on the overruling of the motion for a new trial.
1. It is urged that a verdict should have been directed, as the only evidence of the commission of the crime and defendant's connection therewith was that given by an accomplice, or, if additional evidence was adduced, it was insufficient to meet the requirements of the law with reference to corroboration of the evidence of an accomplice.
Direct evidence of defendant's guilt was given by Louis Nelson admittedly an accomplice, who with one William Harvey, had been committed to the penitentiary, after the hogs in question were stolen, on pleas of guilty to a burglary charge, in return for which Nelson was assured he would not be prosecuted on the hog stealing charge.
Nelson testified that on the night of May 14, 1929, he and Harvey drove to the Broell ranch, which was about seven miles from Livingston, Park county, and fifteen miles from the place where the hogs were stolen. Harvey remained at the ranch, and Nelson, in company with the defendant, drove in defendant's Ford truck to "a place on the side road from the highway" where they killed three red hogs, dragged them some distance to where the truck was parked, loaded them in, and drove back "fifteen or twenty miles" to the Broell ranch. In their absence a fire had been built under a scalding vat, and there defendant, Nelson, Harvey, and William Broell proceeded to dress the hogs for market. All this happened between 10 p. m. and some time after midnight. The witness further testified that on the following morning he and defendant loaded the carcasses into the Ford truck, drove to Livingston, and there defendant sold them to the proprietor of a meat market. Nelson and Harvey drove to the Broell ranch in a Nash sedan. On cross-examination the witness denied that he had heard any conversation between Harvey and Carl Broell relative to the payment by the former of money owing to the latter, or any agreement that Carl Broell was to be paid for hauling the hogs to market.
Had Nelson not been an accomplice, there can be no question but that the foregoing evidence would sustain the verdict and judgment; but section 11988, Revised Codes 1921, declares: "Conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid * * * 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." Counsel for defendant contends that, eliminating Nelson's testimony, there is no proof of the corpus delicti or of defendant's connection with the offense charged.
The corpus delicti may be proved by circumstantial evidence. State v. Ducolon, 60 Mont. 594, 201 P. 267. While, as will later appear, the complaining witness did not state categorically that his hogs were stolen or that he had not either sold or given them away, his testimony clearly shows that they were taken without his knowledge or consent and without right or authority, and, by the defense interposed, it is in effect, conceded that the hogs sold were stolen from the complaining witness; the only question raised being as to whether or not this defendant was a party to that crime. Further, the corroborating evidence required need not be direct, but may be circumstantial. State v. Ritz, 65 Mont. 180, 211 P. 298.
As to the requirement of the statute above quoted, it is not necessary that the accomplice be corroborated as to every fact to which he testifies, or that the independent evidence be sufficient, of itself, to establish the defendant's guilt. State v. Slothower, 56 Mont. 230, 182 P. 270. It need not connect the defendant with the commission of the crime, but is sufficient if, unaided by the testimony of the accomplice, it tends to do so, and in determining its sufficiency for that purpose, all of the evidence in the record, other than that of the accomplice, is to be considered, including the evidence of the defendant himself. State v. Bolton, 65 Mont. 74, 212 P. 504; see also State v. Yegen, 86 Mont. ---, 283 P. 210.
Entirely disregarding Nelson's testimony, the record discloses the following facts: On the evening of May 14, 1929, Laurent Sarrazin owned four red hogs which he kept at a place approximately seven miles from Livingston, in the opposite direction from the Broell ranch. On the morning of the 15th he discovered that three of these hogs had been killed, blood marking the place of slaughter, and dragged some distance to where automobile tire tracks showed in soft earth. From the fact that these tire tracks were narrow and those made by the rear tires larger than those made by the front tires, witnesses deduced that the vehicle in which the hogs had been transported was a Ford truck. On the morning of the 15th this defendant and Nelson drove into Livingston in a Ford truck in which they had the carcasses of three hogs. Defendant Carl Broell sold the carcasses to the butcher and received in payment a check made payable to him. Defendant owned and kept hogs on his ranch. On investigation at the Broell ranch, the sheriff discovered recently removed red hog hair in and around the scalding vat and, on calling it to the attention of William Broell, was informed that they had recently dressed "an old boar." This conversation was not denied by William Broell when on the stand, nor was there any attempt made to show that the hair in question was taken from any other hogs than those belonging to Sarrazin, all of which were sows.
This independent information shows, circumstantially in part and directly in part, that the hogs were stolen as alleged, and that, as the defendant had them in his possession almost immediately after the theft and disposed of them as his own, he either stole them himself or received them from someone shortly after they were stolen. His possession and exercise of dominion over the property recently stolen, unexplained and considered in the light of surrounding circumstances, at least "tended" to connect him with the commission of the offense, regardless of whether or not the attending circumstances were sufficient, coupled with such possession and dominion, to warrant a conviction on a charge of larceny or of receiving stolen property. See State v. Keithley, 83 Mont. 177, 271 P. 449, 452.
The following statement from State v. Evans, 60 Mont. 367, 199 P. 440, 442, is pertinent: "Although there was not any direct and positive evidence that the defendant stole the animal described in the information, the possession by the defendant of the meat of the animal and his exercise of ownership over it under the circumstances here indicated, furnish a basis for the inference that he killed the animal, and the evidence was sufficient to justify the court in submitting it to the jury."
The question here is, not whether the evidence now considered was sufficient to warrant a conviction, but merely as to whether it was such as " tends" to connect the defendant with the...
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