State v. Emmons

• Decision Date: 21 March 1972
• Docket Number: No. 10968,10968
• Citation: 495 P.2d 11,94 Idaho 605
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Leland EMMONS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 11

495 P.2d 11

94 Idaho 605

STATE of Idaho, Plaintiff-Respondent, v. Leland EMMONS, Defendant-Appellant.

No. 10968.

Supreme Court of Idaho.

March 21, 1972.

Gary L. Morgan of Gigray, Downen & Morgan, Caldwell, for defendant-appellant.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Appellant Leland Emmons appeals from his conviction of grand larceny as defined by I.C. § 18-4604(1). ¹ Appellant was tried before a jury which returned its verdict of guilty. The district court entered judgment of conviction on the verdict and sentenced the appellant to a term of imprisonment not to exceed five years.

The principal issue is whether the district court erred in not finding that the state's main witness was an accomplice as that term is utilized in I.C. § 19-2117. ² The district court allowed the jury to consider the issue as a factual question and the jury resolved it against appellant.

There is no serious dispute concerning the facts of the incident in question. On the evening of September 24, 1970, appellant and three other youths entertained themselves by driving about the streets of Caldwell, consuming a six-pack or more of beer as they drove. Randy and Frank appear to have been minors. Appellant was eighteen years of age, and the age of the fourth occupant, Ted, is not apparent.

At the beginning of the evening appellant drove the other three youths in his car. Later they changed to another car and Ted did the driving. Soon after the change of cars, Frank was dropped off at his home and took no part in the subsequent events. The other three continued their 'cruising' activities around Caldwell.

The only occupants of the car who testified at the trial were Randy and Frank. Frank's testimony only related to events which occurred prior to the time he was left at his home. Randy testified to the same facts as Frank, and also testified to events which occurred after Frank was dropped off. Sometime after midnight, according to Randy's testimony, the boys drove onto Maple Street, and appellant ordered Ted, the driver, to stop alongside a parked station wagon.

Randy testified that appellant got out of the car, looked in the station wagon, opened a door and removed a typewriter and cover and placed these in Ted's car. Randy stated that both he and Ted called to appellant to 'leave this stuff alone.' Inconsistent with their statements, however, both Randy and Ted got out of the car and proceeded to help themselves to a briefcase and copier machine out of the station wagon and loaded these items in Ted's car. (The information charged Emmons only with larceny of the typewriter and its cover and did not mention either the briefcase or copier machine.)

After placing the personal property in their vehicle, the three boys immediately drove away along side streets until they reached a vacant house rented by a relative of appellant. The three unloaded the goods and put them in the house and appellant and Ted then drove Randy to his home. Randy apparently had no further contact with the stolen goods and only spoke briefly thereafter with Ted who informed him that the police had been looking for him (Ted).

Three other witnesses testified. A Caldwell police detective testified that he came into possession of the typewriter and its cover from a third individual who told him she had purchased the typewriter and its cover from Ted. The detective's testimony in no way connected the typewriter to appellant.

Mr. Rowland, the owner of the station wagon from which the goods were taken, testified that in the early morning hours of September 25, 1970, he was awakened by noise in the street from a car, followed by a shout. He looked out and saw one fellow jump in the back seat of a car as it moved away. Due to the distance and darkness he was unable to further identify the vehicle or the occupants. He stated, however, that it was not unusual for youths in cars to stop in that vicinity. The record fails to contain any description of the second car the three boys were using that evening other than it was a two-door model.

The remaining witness was Mr. Johson, the president of the corporation which employed Mr. Rowland as a salesman. He identified the typewriter and cover as property of the corporation and established the fair market value of the items.

At the close of all testimony, appellant moved to dismiss the information and to direct a verdict of acquittal. His motion was based on I.C. § 19-2117, supra note 2. Appellant contended (1) that Randy, the witness, was an accomplice as a matter of law, and (2) that there was no corroboration of Randy's testimony as required by I.C. § 19-2117, supra.

The respondent State challenged these two contentions and the district court ruled, 'there (was) no corroboration whatsoever of the testimony of the witness,' Randy. The court, however, denied the motion for a directed verdict, gave the jury definitions of accomplice, then instructed them as follows:

'You are instructed that a 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 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 of the offense.

'If you find that the witness, Randy * * *, was an accomplice as defined in these instructions you will acquit the defendant as * * * (Randy's) testimony is not corroborated.' Instruction 17.

The prosecutor objected to the last portion of Instruction 17, contending that there was corroborating evidence. However, in this Court the respondent State took no cross-appeal where this issue could have been raised. I.C. § 19-2804(5). Nor does the respondent's brief make any reference to such issue of corroboration. Supreme Court Rule 41(2) states in part, 'Briefs of both parties shall state the several propositions of law claimed to be involved in the case and the authorities relied upon.' See State v. Stevens, 93 Idaho 48, 454 P.2d 945 (1969). Therefore, we decline to consider this as an issue properly before this Court.

This Court in a number of decisions dealt with the definition of the term 'accomplice.' ³ In State v. Wilson, 93 Idaho 194 at 199, 457 P.2d 433 at 438 (1969), we reiterated previous statements of this Court as follows:

"An 'accomplice' is a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission * * *" (Quoted from State v. Gilbert, 65 Idaho 210, at 215, 142 P.2d 584 at 585.)

'* * *

"Mere presence at, acquiescence in, or silent consent to the commission of an offense is not, in the absence of a duty to act, legally sufficient, however reprehensible it may be, to constitute one a principal, an accessory, or aider and abettor, or an accomplice. An accomplice is one who is joined or united with another; one of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it." (Quoted from State v. Altwatter, 29 Idaho 107, at 111, 157 P. 256 at 257.)

It is our conclusion that the actions of the witness, Randy, fall squarely within these definitions. The State argues that Randy did not take the typewriter or cover for which appellant was charged. Although that is the fact, yet, based on his unequivocal statements, it is also inescapable that Randy assisted in looting of the station wagon and wilfully participated in hiding the stolen goods. This was one continuous chain of events or transaction. It took but a moment for Randy to jump out of Ted's car and help with the theft from the station wagon. That this witness was an accomplice under the provisions of I.C. § 19-2117 is the only logical and reasonable conclusion which can be reached from this record.

Where there are facts in dispute or in conflict which raise a genuine issue as to whether a witness is indeed an accomplice, the court must submit that issue to the jury for resolution. State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933). However, it is clear from our decisions that where 'it appears without substantial conflict in the testimony that such witness was an accomplice,' the court must decide the question as a matter of law. State v. Brown, supra; State v. Wilson, supra. Accord: Cruz v. State, 40 Ariz. 436, 14 P.2d 247 (1932); People v. Wallin, 32 Cal.2d 803, 197 P.2d 734 (1948); People v. Barclay, 40 Cal.2d 146, 252 P.2d 321 (1953); Walker v. State, 89 Okl.Cr. 19, 204 P.2d 552 (1949); Renfro v. State, 477 P.2d 92 (Okl.Cr.App.1970); State v. Carr,28 Or. 389, 42 P. 215 (1895); State v. Gowin, 241 Or. 544, 407 P.2d 631 (1965). The district court therefore erred in allowing the jury to pass on this issue.

The Oregon Supreme Court's opinion in State v. Carr, supra, wherein a criminal conviction was reversed because it was based on uncorroborated testimony of an accomplice, contains a clear statement of the purpose of a statute such as I.C. § 19-2117:

'* * * This statute (essentially the same as I.C. § 19-2117) absolutely prohibits a conviction in a criminal case upon the uncorroborated testimony of an accomplice, even although (sic) the jury may believe such testimony to be entirely true, and that it establishes the defendant's guilt beyond a reasonable doubt. It proceeds upon the theory that experience in the administration of the criminal law has shown the sources of such testimony to be generally so corrupt as to render it unworthy of belief, and that it is therefore better as a matter of public policy to forbid a conviction on the uncorroborated testimony of an accomplice, although the guilty may thereby sometimes escape punishment, than to leave it possible for the conviction of an innocent person on such testimony. Whether this rule of...