State v. Dodson

• Decision Date: 13 May 1912
• Docket Number: 81912
• Citation: State v. Dodson, 23 N.D. 305, 136 N.W. 789 (N.D. 1912)
• Parties: STATE v. PHINEAS DODSON
• Court: North Dakota Supreme Court

136 N.W. 789

23 N.D. 305

STATE v. PHINEAS DODSON

No. 81912

Supreme Court of North Dakota

May 13, 1912

Appeal from the District Court of La Moure county; Coffey, J.

Defendant was convicted of the crime of grand larceny, and appeals.

Affirmed.

Curtis & Curtis and Davis & Warren, for appellant.

Conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as 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. State v. Coudotte, 7 N.D. 109, 72 N.E. 913; State v. Kent, 4 N.D. 577, 27 L.R.A. 686, 62 N.W 631; State v. Hicks, 6 S.D. 325, 60 N.W. 66; State v. Phelps, 5 S.D. 480, 59 N.W. 471; State v Levers, 12 S.D. 265, 81 N.W. 294; 12 Cyc. 453-459.

Remarks of the state's attorney as to defendant's not testifying, and the instruction of the court upon the fact that defendant did not testify, were prejudicial error. State v. Williams, 11 S.D. 64, 75 N.W. 815; State v. Garrington, 11 S.D. 178, 76 N.W. 326; State v. Bennett, 21 S.D. 396, 113 N.W. 78; 12 Cyc 576.

George P. Jones, for respondent.

Evidence is sufficient without the testimony of Carter, to make a good case of circumstantial evidence; but with the testimony of the accomplice Carter there can be no doubt of the defendant's guilt. State v. Rowland, 72 Iowa 327, 33 N.W. 137.

Remarks of counsel to the jury that defendant had introduced no evidence to show where he was on the night of the crime do not violate the statute, which provides that the refusal of the defendant to testify shall not be considered by the jury as evidence against him. State v. Ward, 61 Vt. 153 17 A. 483, 8 Am. Crim. Rep. 207; Sutton v. Com. 85 Va. 128, 7 S.E. 323; Halleck v. State, 65 Wis. 147, 26 N.W. 572.

OPINION

BRUCE, J.

The defendant was convicted of the crime of grand larceny. The information charged that he stole one bay mare, eight years old, weight about 1,400 pounds, one black mare, six years old, weight about 1,400 pounds, one black gelding, five years old, weight about 1,050 pounds, one bay colt, three years old, and one sucking colt, from one F. E. Gereau on or about the 9th day of March, A. D. 1911. A reversal is sought upon the grounds: (1) That the verdict is against the evidence; (2) that the court erred in admitting a certain check in evidence; (3) because the state's attorney, in his address to the jury, asked the question: "Why hasn't he (the defendant) witnesses here to prove where he was on the night of March 9, 1911?" The defendant himself not having taken the stand; and (4) that the court erred in, himself and of his own motion, instructing the jury as follows: "The jury is instructed that in a criminal case the defendant need not take the witness stand, and because the defendant had not taken the witness stand in this case should not be permitted by you to prejudice him in any way. The failure of the defendant to testify is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of the defendant not having testified; and the jury are further instructed not to allude to this fact in their deliberations in arriving at a verdict."

One of the principal witnesses for the state was a man of the name of Carter, who was a confessed accomplice in the transaction. It is claimed that his evidence was uncorroborated, that the evidence as a whole failed to identify the horses which were alleged to have been stolen, and that the proof did not conform to the information. We do not believe, however, that any of these contentions can be sustained, but, on the contrary, that although the evidence is mainly circumstantial it was sufficient to justify the verdict of the jury. The appellant, indeed, wishes this court to entertain "the reasonable doubt" when that matter was for the jury, and not for us. It is for us to pass upon the question as to whether there was evidence sufficient to justify a verdict of guilty if no reasonable doubt was entertained by the jury. The witness Gereau positively testified to the fact that he found a sucking colt and a three-year-old bay and a five-year-old black horse, weight 1,050 pounds, at Garden Plains, Illinois, and that these horses belonged to him and were grazing at or near Edgeley on or about March 9, 1909. These horses were described in the information as one black gelding five years old, weight about 1,050 pounds, one sucking colt, and one bay colt three years old, and although the other horses described in the information are not, perhaps, sufficiently accounted for, these three certainly are, and if there was evidence tending to show and from which the jury might find beyond a reasonable doubt that they were stolen by the defendant, the identification was certainly sufficient. The witness Carter, who was a confessed accomplice of the defendant, testified that on or about March 9, 1909, he helped the defendant to dispose of some horses, "a mixed bunch, some colts and some horses and some mares in the bunch, not more than one of them was with foal. They were of a dark color, brown and bays. One black, maybe." He also testified that he helped to ship these horses to South St. Paul and sold some of them to one J. B. Fitzgerald, "for a man in Illinois or Iowa or somewhere." This witness, it is true, is an accomplice, and his testimony should be corroborated, but this is certainly done. He testifies that the horses were stolen from the neighborhood of the farm of the complaining witness, and testifies to his whereabouts on that night, and the fact that he accompanied the defendant on some if not all of his missions, and went with him to secure some of the horses. "I know the defendant, Dodson," he said; "I was acquainted with him on March 9th. I met him at that time at Deisem. We went off south of Deisem to look for a horse that had broken away from us,--so he said--the day before. I do not remember seeing anybody but a boy. We might have met someone on the road. I am not sure. I do not know whose boy it was. After going south we went back to Deisem, and we then went to Edgeley. A traveling man was with us. Something took place that evening. We had a deal on for some horses, and he (Dodson) was to go out and get them and bring them in to me. Dodson got a little horse that I had there and went out. It must have been about 8 o'clock. I cannot say what time. It was not very late. Dodson left the barn at that time on a saddle horse. There was around the barn that evening a man who worked there, and I don't know of anyone else but John Plott. After defendant left I got a saddle horse and went out to Boolby's pasture, between 9 and 10 o'clock. I looked to see if there was any horses in the pasture, and went back to Edgeley. Dodson was not there. I got back to Edgeley about 9 or 9:30. I laid down in a stall in the back of the barn about 11 o'clock. I went back to the barn and waited for Dodson. He got back about 2 o'clock. He told me the horses were in Boolby's pasture, about half a mile north of town. We stayed in the barn until about 4 o'clock, and went to my house and got breakfast. It was somewhere about that time. Dodson and I then took the horses to the Fradet barn. I shipped those horses to St. Paul. I should say it was around half past 5 o'clock in the morning when we arrived at the Fradet place with the horses. It was good daylight. After we arrived at this Fradet place, Dodson went back to Edgeley and I stayed there. He (Dodson) did not stay any length of time around the Fradet place. Just put the horses in the shed and went back on horseback. These were the horses I shipped. I shipped them from Berlin to South St. Paul, and sold them there. I know G. W. Stone and J. B. Fitzgerald bought two or three of the horses for a man in Illinois or Iowa. We talked about what should be done with the horses that night or morning, going out. It was agreed that I should sell them and divide the money. He got part of it, and I got into trouble and he did not get it all. He said he got hold of some horses without the permission of the owner and could sell them cheap. I knew these horses I got from Dodson were stolen horses. He said he had gotten them without the owner's permission."

A large portion of this testimony is corroborated, and as to material facts. The witness Sibley testifies that he saw Dodson and Carter in Deisem on March 9th. The witness Overlees testifies that he saw Dodson and someone with him about half a mile south of his place, and about 2 miles from Deisem; and that they claimed they were looking for horses; that they asked him if he had seen any horses with halters on. The witness Holta testifies that he saw Carter and the defendant on the morning of March 9th, standing together, and again in the afternoon. The witness Plott testifies to seeing them at the livery barn with a saddle pony. The witness John Coop testifies that on the morning of March 10, 1911, Dodson came in early in the morning on horseback, and that his horse was sweaty and pretty tired. The witness Fortin testifies to practically the same facts. The witness Gilbertson testifies to seeing Carter standing in the barn door and seeing...