State v. Foster

• Court: North Dakota Supreme Court
• Writing for the Court: MORRIS
• Citation: State v. Foster, 69 N.D. 428, 287 N.W. 517 (N.D. 1939)
• Decision Date: 13 September 1939
• Parties: STATE v. FOSTER.

69 N.D. 428

287 N.W. 517

STATE

v.FOSTER.

Supreme Court of North Dakota.

Cr. 164.

Sept. 13, 1939.

Syllabus by the Court.

1. The corroboration of the testimony of an accomplice required by Section 10841, Compiled Laws, N.D.1913, in order to sustain a conviction must tend to connect the defendant with the commission of the crime but such corroboration need not extend to every material fact testified to by the accomplice nor be alone sufficient to support a verdict of guilty.

2. Corroboration may be furnished by facts and circumstances which tend to connect the defendant with the commission of the offense.

3. The weight to be given to corroborating evidence is a matter for the jury.

4. Evidence examined and it is held, that the corroborating evidence, when taken together, tends to connect the defendant with the commission of the crime and is sufficient to meet the requirements of Section 10841, Compiled Laws, N.D.1913.

Appeal from District Court, Nelson County; P. G. Swenson, Judge.

Leo Foster was convicted of grand larceny, and he appeals.

Conviction affirmed.

BURKE and CHRISTIANSON, JJ., dissenting.

F. F. Cuthbert, of Devils Lake, for appellant.

Alvin C. Strutz, Atty. Gen., E. C. Boostrom, State's Atty., and Olaf M. Thorsen, former State's Atty., both of Lakota, and Milton K. Higgins, Asst. Atty. Gen., for respondent.

MORRIS, Judge.

Leo Foster appeals from a judgment of conviction for the crime of grand larceny. He is charged with stealing a leather pocketbook of the value of 50 cents and its contents of $29.40 in money from one James Anderson.

On March 4, 1935, the complaining witness, who lives in southern Nelson County, went to Lakota and took with him one Leonard Walhood. Walhood had no money. While at Lakota he borrowed $1 from Anderson and spent it for food and beer. Walhood obtained three one hundred pound sacks of potatoes from the relief office in Lakota. He and Anderson started home about 4 o'clock in the afternoon. They stopped at a place known as the Cave about eight miles south of Lakota, at the suggestion of Walhood, who wanted to get a bottle of beer. The defendant, Foster, who was in charge, and two other men were there. Walhood continually urged Anderson to buy beer. He also borrowed 50 cents more from Anderson who wanted to continue on home, but Walhood wanted to stay. Walhood went out and let the air out of three tires on Anderson's car. While Anderson was pumping up the tires Walhood took the keys out of the car. He then told Anderson that Foster would treat them to some beer before they went home. After pumping up the tires Anderson went in for the beer. While he was in drinking beer someone tore the electrical wires from the distributor and from the spark plugs, so that when Anderson came out again he could not start the car. Walhood says that Foster suggested tearing the wires away and helped in carrying out the suggestion. Anderson then sat in the car for a while waiting for someone to come along with whom he might catch a ride. Later he was called into the Cave and invited to stay all night. The building consisted of a bedroom, a dance hall, and a kitchen. A cot was pulled out into the dance hall where Walhood and Anderson slept. Foster and the two other men, Brooker and Zimmer, slept on the bed in the bedroom. Anderson was sick during the night. At one time he woke up and someone was bending over the cot. Walhood was lying beside Anderson. Walhood asked what was the matter and the figure bending over him said he was looking for a smoke. Anderson did not recognize this person. The lights were off and it was dark. When Anderson went to bed he put his pocketbook containing $29.40 under his pillow. When he woke up in the morning it was gone. He immediately made known his loss and looked for the pocketbook, but none of the other men helped him look for it, and no one seemed to display any interest in his misfortune. Foster and Walhood went into the kitchen together and conversed in low tones.

Walhood frankly tells a sordid story. During the evening he sold all of his relief potatoes to Foster for $1.50 and used the money to buy beer. He drank up this money by about 10 o'clock, and went to bed along side of Anderson. After awhile he woke up and was thirsty again. He got up and asked Foster for more beer. Foster refused to let him have it unless he had the money. He says that Foster urged him to get Anderson's pocketbook. He found the pocketbook lying in the bed along side of Anderson. He took the pocketbook to Foster who kept a twenty dollar bill and gave $9.40 to Walhood. Foster then threw the empty pocketbook into the stove. Walhood continued to buy and drink beer most of the night. He insisted on drinking bottled beer and after drinking part of the bottle he would think the rest was stale and would buy a fresh full bottle. In the morning Anderson called the sheriff who came out from Lakota and searched Walhood but found only some small change on him. Walhood later confessed. In the trial of this case he was the chief witness for the state. According to his statement he and Foster were accomplices. Upon this appeal the defendant contends that he was convicted upon the uncorroborated testimony of Walhood, a confessed accomplice, and that, therefore, the conviction cannot stand.

[1][2][3] He relies upon Section 10841, Compiled Laws, N.D.1913, which provides, “A 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.”

This section has long been a part of our code of criminal procedure and has been construed in a number of cases in connection with various facts. In State v. Kent, 4 N.D. 577, 62 N.W. 631, 27 L.R.A. 686, it is said that [page 638], “The corroboration, to satisfy the statute, must come from some independent source, and must tend to connect the accused with the crime. Mere corroboration as to immaterial matters testified to by the accomplice, or as to the fact that a crime had been committed, or as to the connection of the accomplice therewith, or as to all these combined, will not suffice. The rule is very accurately stated in People v. Plath, 100 N.Y. 590, 3 N.E. 790, : ‘There must be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the prisoner is implicated therein.’ It is not necessary that such corroborating evidence be sufficient, of itself, to warrant a conviction. The requirements of the statute making it necessary to corroborate the testimony of an accomplice are met if the evidence tends to connect the prisoner with the commission of the crime.”

In State v. Coudotte, 7 N.D. 109, 72 N.W. 913, it was held that the testimony of two accomplices that the defendant participated in the murder of one Thomas Spicer was not corroborated by evidence that defendant and another accused were seen together on horseback two or three hours after the murder, the accomplices having testified that the defendant and the other accused rode away from the scene of the crime together in the direction of the place they were later seen, and the court remarked [page 914], “in order that this testimony should show any force whatever as corroborating testimony, it is necessary to include the portion given by the accomplices. In other words, the accomplices must be permitted to corroborate themselves. This is utterly untenable.”

The corroboration required by the statute while it must tend to connect the defendant with the commission of the crime, does not require that every material fact testified to by the accomplice must be corroborated by independent evidence, or that the corroborating evidence standing alone must be sufficient to support a verdict of guilty. State v. Marcovitz, 63 N.D. 458, 248 N.W. 481. The corroboration may be by facts and circumstances as well as by direct evidence. State v. Todd, 62 N.D. 479, 244 N.W. 25. It is also a well settled rule in this state that if the testimony of the accomplices is corroborated as to some material fact or facts tending to connect the defendant with the commission of the crime, the jury may infer therefrom that the accomplice speaks the truth as to all. State v. Reilly, 22 N.D. 353, 133 N.W. 914;State v. Dodson, 23 N.D. 305, 136 N.W. 789;State v. Smith, 51 N.D. 130, 199 N.W. 187. The general rules as to the corroboration of an accomplice are fairly well defined and authority in support thereof is abundant. The application of these rules is much more difficult than their statement. Clearly the state is not required to prove by evidence aside from that of the accomplice that the defendant is guilty beyond a reasonable doubt. It is not even necessary that such evidence establish a prima facie case, but the statute clearly requires that in order to convict there must be evidence other than that provided by the testimony of the accomplice which “tends to connect the defendant with the commission of the offense.” The statute then specifically provides that “the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.”

The state points to various items of independent testimony which it contends furnish sufficient corroboration to support this conviction. There were only a few bottles of beer drunk before the parties went to bed. In the morning there were many bottles strewn about the floor. Zimmer, Brooker and Foster all slept in the one bed in the bedroom. Foster was on the outside and, therefore, was in the most convenient position to get up without waking the others. Foster testified that he went to bed about 10:30 in the evening and slept until morning. In the morning after the robbery had been discovered,...