State v. Dixson

• Decision Date: 13 October 1927
• Docket Number: 6162.
• Citation: 260 P. 138,80 Mont. 181
• Parties: STATE v. DIXSON.
• Court: Montana Supreme Court

260 P. 138

80 Mont. 181

STATE v. DIXSON.

No. 6162.

Supreme Court of Montana

October 13, 1927

Appeal from District Court, Stillwater County; H. J. Miller, Judge.

Bernard Dixson was convicted of first degree burglary, and he appeals. Affirmed.

O'Connor & Miller, of Livingston, and M. L. Parcells, of Columbus, for appellant.

L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.

MYERS J.

The defendant was charged with, tried for, and convicted of, the crime of burglary in the first degree. It was charged that in Stillwater county, on or about December 20, 1926, in the nighttime, he burglarized a billiard hall of one M. A Jacobs, by entering the same with intent to commit therein larceny. The information charges breaking and entering, but the statute (Rev. Codes 1921, § 11346) merely uses the word "enters" and says nothing about breaking. Hence the word "break" in the information is surplusage and need not be considered. The billiard hall was situated on the second floor of a building in the town of Columbus.

At the time of the alleged burglary and the time of the trial, March 23, 1927, the defendant was 19 years of age. July 17, 1926 when he was barely 19 years old, without consent of either parent or a guardian, a marriage ceremony, purporting to unite him in marriage with one Mae Toy, was performed. They lived together a very short time. February 27, 1927, before the trial of defendant, by decree of a court of competent jurisdiction, as a result of appropriate action, instituted by this defendant, by and through a guardian, that marriage ceremony was annulled and was decreed to be "absolutely null, void and of no force and effect whatsoever." At the trial of defendant, Mae Toy, without his consent and over his objection, was allowed to testify for the state.

In his billiard hall, Jacobs kept, usually on punch boards, watches, jewelry, pocketknives, manicure sets, beads, and other articles of personal property, which might be obtained by games of chance. He kept, too, some articles for sale. There is evidence to show that in the early hours of December 20, 1926, between 12:15 a. m., and 6:30 a. m., a lot of such articles as were usually kept on the punch boards were taken by some one from the billiard hall. Some days later, the evidence shows, defendant, while in custody, admitted to officers of the law that he entered the building and took the missing articles, and he informed the officers as to where the missing articles were. Acting on that information, the officers obtained a lot of articles that tallied with each and every of the missing articles and were identified as being the same in kind, character, make, and description. There is evidence to show that, at the same time, some money was taken from the billiard hall. No money was recovered.

At the trial of defendant, when the state rested and again at the close of all the evidence, counsel for defendant moved the court to instruct the jury to acquit the defendant. Each time, the motion was overruled. After verdict of guilty, counsel for defendant moved the court to vacate and set aside the verdict. The motion was overruled. When defendant appeared for sentence and pronouncement of judgment, his counsel objected, upon grounds stated, to the imposition of any judgment or pronouncement of sentence. The objection was overruled and judgment was pronounced. Thereafter, defendant, by his counsel, moved for a new trial and the motion was denied. Defendant appealed from the judgment and from the order of the court made in denying a new trial. Counsel for defendant make a large number of assignments of error, more than a hundred. We shall discuss the assignments in what appears to us to be appropriate order.

It is contended by counsel for defendant that the corpus delicti was not proven, independent of admissions or confessions of defendant. That contention was made one of the grounds upon which was based the motion for a directed verdict in favor of defendant, and the adverse ruling of the trial court on that contention is urged as error. That contention has required careful, painstaking reading of the entire record, and it has been given.

True, there must be proof of the corpus delicti, independent of admissions or confessions of a defendant. However, there is no law in this state requiring that the corpus delicti in this case had to be proven by direct or positive evidence. "In the absence of any statute to the contrary, it is not necessary that the corpus delicti should be established by direct and positive proof." 16 C.J. 772. In Montana, only in homicide cases is the corpus delicti required to be established by direct proof. Section 10962, Rev. Codes 1921. As to other offenses, there is no such requirement. Hence, as to all other, the corpus delicti may be established by circumstantial evidence. That is settled by prior decisions of this court. State v. Wells, 33 Mont. 291, 83 P. 476; State v. Keeland, 39 Mont. 506, 104 P. 513. In this case, no eyewitness testified to the corpus delicti of the charge, i. e., entering the billiard hall with intent to commit therein larceny; but we hold the circumstantial evidence amply sufficient to establish it.

A witness for the state, one Lewis, an employee of Jacobs, at the billiard hall, testified that he made sales of merchandise in the place, used the cash register, and made change at it; that he was there until about 9 o'clock, the evening of December 19, when he left and left Jacobs there; that at that time there were in the cash register about $47 and in the slot machine about $30, and there were on the punch boards a lot of watches, pocketknives, manicure sets, beads, fountain pens, and other articles.

Another state witness, one Scovil, testified that he was in the billiard hall the most of the afternoon of December 19. His testimony showed that he had some familiarity with the place. He testified further that he returned to the place, to make a small purchase, that night, a few minutes after midnight; that, upon that occasion, when he arrived, Jacobs, the proprietor, was the only person in the place; that he remained there until about 12:15 o'clock a. m., December 20, and no one else came into the place, he and Jacobs being the only persons there; that, at that hour, he and Jacobs left together, and, upon leaving, Jacobs closed the door and shook it, to see that it was locked, and they departed, going their respective ways; that, while he was in the place, that night, he noticed the condition of things; noticed punch boards, slot machine, and settee; that he saw nothing unusual about the place or the articles of furniture therein or on the floor; that the slot machine was in its usual place, with its back to the wall.

Witness Lewis further testified that he always opened the place, for the purpose of cleaning up, the first thing of mornings; that he went there, for that purpose, at 6:30 o'clock, the morning of December 20, and, at that time, none of the articles that had been on the punch boards at 9 o'clock, the evening before, were there or in the place at all; that he "found everything upside down; drawers were all open, cash register open, and the slot machine torn apart and put down on the sofa there and the money all taken out of the box; burnt matches on the floor in front of the cash register and in front of the slot machine; articles all gone; checks and burnt matches on the floor." He said that some of the checks on the floor were checks he had seen in the cash register, the evening before. Lewis notified Jacobs of this condition. Jacobs immediately went to the billiard hall and called the sheriff, who came to the place. A deputy sheriff also came, and a little later another employee of Jacobs came. Jacobs examined, to see what was missing. Jacobs or his help made a list of missing articles and gave it to the officers.

We hold that the foregoing narrated evidence all brought out, and more, before there was any testimony about admissions or confessions of defendant, establishes the corpus delicti beyond a reasonable doubt. It certainly shows that the place was burglarized. The furniture could not have upset and discommoded itself. The missing articles could not have removed themselves. It was done by somebody. To do it, he had to enter. The fact that larceny was committed proves that the person who entered the place entered for that purpose and with that intent. A person is presumed to intend to do that which he does. This is a situation which speaks for itself. Nixon v. State, 89 Neb. 109, 130 N.W. 1049. The evidence was certainly sufficient to go to the jury.

Counsel for defendant urge there is no evidence of how the entry was made. It makes no difference. The entry might have been made by a pass key or through an unlocked door or window. It is immaterial, so far as proof of the corpus delicti is concerned. We believe the circumstantial evidence of the corpus delicti in this case stronger than that in State v. Wells, supra, in which it was held sufficient. We consider it much stronger in this case than in any of the following named cases, in each of which it was held sufficient: People v. Harris, 114 Cal. 575, 46 P. 602; People v. Cahill, 11 Cal.App. 685, 106 P. 115; State v. Collins, 79 Kan. 411, 99 P. 817; State v. Court, 225 Mo. 609, 125 S.W. 451. We hold the contention of counsel for defendant, in respect to the corpus delicti, without merit.

Counsel assign as error the action of the trial court in permitting over objection, officers of the law to testify to statements of defendant as to his connection with the crime charged. At the trial, counsel for defendant objected to such testimony chiefly upon two grounds, i. e., that the corpus delicti had not proven and that...