State v. Currie

• Decision Date: 06 March 1905
• Citation: 102 N.W. 875,13 N.D. 655
• Parties: STATE v. CURRIE.
• Court: North Dakota Supreme Court

13 N.D. 655

102 N.W. 875

STATE

v.CURRIE.

Supreme Court of North Dakota.

March 6, 1905.

Syllabus by the Court.

1. Upon the trial of one charged with burglary, the mere fact that one who was present with and assisted him in the burglary was a detective is not a defense, if the detective did not instigate the crime, and it was committed as to every ingredient of it by the criminal.

2. Where a detective disclosed to the owner of the building that it was probably about to be burglarized by a person named, with the feigned assistance of himself, acting for the purpose of securing evidence of the intended burglary and other crimes, the fact that the owner did not take steps to prevent the burglary, but passively allowed it to go on, is not a consent to the burglary that will be a defense to the burglar.

3. Where a detective apparently assists in a burglary for the purpose of securing evidence of the same and other offenses, the acts of the detective are not to be imputed to the criminal, as they are not acting in a common purpose. Nevertheless, if the offense is committed by the person charged as to every element thereof, he may be found guilty, notwithstanding the complicity of the detective.

4. An instruction by the court that the jury must not consider the failure of the defendant to become a witness in his own behalf in arriving at a verdict is not erroneous.

Appeal from District Court, Walsh County; W. J. Kneeshaw, Judge.

Charles Currie was convicted of burglary, and appeals. Affirmed.DePuy & DePuy, for appellant.

MORGAN, C. J.

The defendant was convicted of the crime of burglary in the third degree, and sentenced to five years in the penitentiary. His principal contention on the appeal is that the court erred in refusing to give certain requested instructions bearing on the relation of the owner of the building, and of a certain detective, to the commission of the alleged crime. His claim is that the owner of the building consented to the burglary, and that defendant was instigated to commit the burglary under the undue influence of the detective in causing him to become intoxicated.

The facts are uncontradicted in respect to what transpired before the burglary, and are as follows: About January, 1904, several crimes, including burglaries, larcenies, and arson were committed in Minto, Walsh county, N. D., without any success by the local authorities in arresting the perpetrators and bringing them to trial. Thereupon the county authorities sought the aid of one Walker, a detective from St. Paul. The detective had an interview with the state's attorney upon his arrival in the county, and secured from him the names of the persons suspected of complicity in the past crimes, among them being the name of the defendant. The detective thereupon acted as a cook in a restaurant in Minto. This restaurant was kept in connection with a place kept by one Gile, where intoxicating liquors were unlawfully sold. The restaurant feature of the establishment was a pretense, as a matter of fact, and was resorted to for the purpose of giving to the detective the appearance of having employment at the place. After some days the defendant and Walker became acquainted, and soon became constant companions. They ate together, slept together, drank to excess together, and became confidential with each other and intimate in their relations. The detective loaned the defendant small sums of money at one time, and in conversation about money matters the detective told defendant that he had $65 coming from Canada. The defendant then stated to Walker that he knew where “we could get some money,” and, upon being asked where, answered, “in some of these stores around here.” The defendant and Walker finally, and after much consideration of the time and place of a burglary, concluded to break into a store. The detective says in respect to the final conclusion: “We arranged a deal to break this store open.” The first suggestion of a burglary, as between the defendant and Walker, came from the defendant. Several stores were suggested by the defendant as ones that might be burglarized, and among them Zulesdorff's, the one that was broken into. Before the store to be burglarized was agreed upon, Walker secured a letter of introduction to the mayor of Minto from the state's attorney. Walker presented the letter to the mayor, and told him of the contemplated burglary, and further stated: “I told him what I was there for, and told him about the stores, this building to be broken open, and told him that I didn't want myself in some place where I might get shot, * * * and told the doctor, if he knew any storekeeper in town there that would keep a secret, he had better go and notify him, and afterwards I would see him.” Dr. Evans, the mayor, suggested that Zulesdorff's store be selected, and saw Zulesdorff in pursuance of this request, and Zulesdorff sent Walker word that he wished to see him. Walker saw Zulesdorff thereafter, and testifies as to what transpired between them as follows: “And he said that he had seen Dr. Evans, and he said that things would be all right; and I told him that after it was broken into he was to keep still about it, and told him what I wanted to know on the outside; and I said, ‘By doing that I can get in a little work, and can find out the rest of these people;’ so that was about all that was said between I and Frank Zulesdorff.” Later, he testified as follows upon his further cross-examination: “Q. And Zulesdorff told you it would be all right? A. Yes, sir. Q. And that he would permit you to use his store in your plans, and would keep the matter a secret for a sufficient length of time to enable you to complete the job? A. Yes, sir.” Zulesdorff did nothing further in reference to the burglary, except that he marked two $5 bills that he left in the money drawer with other money on the Saturday night preceding the burglary, which was committed on Sunday night. The doors and safe and money drawers were locked, and left in the same manner as usual. He marked the bills so that he could identify them in case they were stolen. On these facts it is claimed that Zulesdorff consented to the breaking, and that the defendant cannot, in consequence of such consent, be rightfully convicted of the crime of burglary.

After the conversation between Zulesdorff and Dr. Evans and Walker, it was definitely decided by defendant and Walker that the Zulesdorff store was the one to be burglarized. Walker says that he never made any suggestions to the defendant as to the burglary; that he simply acquiesced and agreed to defendant's plans. In answer to a question as to “why you didn't go on with your plans, then, everything being all right,” he testifies: “Yes, sir, right enough if I had wanted to work the plan myself, but I didn't want to do that. I wanted him to do it himself, if he wanted to do it.” Walker and defendant agreed to break into the store Saturday night, and went to the store for that purpose, but something happened after they got to the store, causing the breaking to be abandoned on defendant's request. He then said, however, “We will try it tomorrow night.” On Sunday night they again went to the store, and broke into it by joint force. The defendant removed the marked bills and other money from the money drawer, and a fur-lined coat was also taken from the store by defendant, and they left the building together. After leaving the building the money, $16.60, was equally divided between them. The overcoat was hidden in a livery barn by the defendant, and subsequently found by an officer and returned to the owner. In a few days the defendant was arrested at the instance of one Gile, and his trial and conviction followed.

Upon these facts, two questions are presented for consideration which were raised at the...