State v. Gaffney

• Decision Date: 10 March 1938
• Docket Number: 7761.
• Citation: 77 P.2d 398,106 Mont. 310
• Parties: STATE v. GAFFNEY.
• Court: Montana Supreme Court

77 P.2d 398

106 Mont. 310

STATE v. GAFFNEY.

No. 7761.

Supreme Court of Montana

March 10, 1938

Appeal from Sixteenth District Court, Prairie County; Rudolph Nelstead, Judge.

Leslie L. Gaffney was convicted of attempt to commit arson, and he appeals.

Affirmed.

D. L O'Hern and Hugh J. Lemire, both of Miles City, for appellant.

W. R Flachsenhar, of Terry, and Harrison J. Freebourn and Carl N Thompson, both of Helena, for respondent.

STEWART Justice.

Leslie L. Gaffney was convicted of an attempt to commit arson in Prairie county and sentenced to the state prison. The appeal is from the judgment and is predicated upon four assignments of error, which raise the following questions: (1) Did the court err in requiring defendant to go to trial upon the amended information? (2) Does the evidence in the record contain independent facts and circumstances sufficient to corroborate the testimony of Harold A. Sayer, confessed accomplice in the attempted arson?

The information as amended charged as follows: "The said Leslie L. Gaffney on the 18th day of October, 1936, *** did in the night-time of said day, unlawfully, feloniously, wilfully and maliciously attempt to burn a certain inhabited frame building, *** in which said building there were at said times human beings, *** with intent by the said defendant then and there to set fire to, burn and destroy said building, by placing several receptacles containing kerosene, gasoline, and other inflammatory materials and scattering the same on the bed and about the rooms of the second floor of said building. ***"

The italicized portions indicate the amendment which was made by interlineation at the time of trial. Notice of the proposed amendment was served on defendant and his counsel ten days prior to day of trial. The court took the position that the amendment was one of substance requiring rearraignment. On rearraignment defendant again pleaded not guilty, and the trial proceeded over the objection that he was not prepared for trial on the amended information.

Defendant insists that after the information was amended as to a matter of substance, he was entitled to at least two days in which to prepare for trial by virtue of section 11935, Revised Codes, which provides: "After his plea, the defendant is entitled to at least two days to prepare for trial." The force of defendant's contention based on this statute loses much of its effect in the face of the record showing that he had been given ten days' notice of the state's intention to move that the amendment be made. However, there is yet a further reason why the contention is without merit, and that is that we believe the original information was sufficient without the amendment. The amendment added nothing more than could have been obtained by the defendant in a bill of particulars, which any defendant may obtain. State v. Stevens, 104 Mont. 189, 65 P.2d 612, and cases therein cited.

Technically speaking, defendant, having been required to plead again, ordinarily should have been allowed the statutory minimum of two days in which to prepare for trial, section 11935, supra, but here the amendment was not necessary, nor was the rearraignment, which facts made the defendant's position different from that of a defendant entering his plea for the first time. In any event, the defendant's rights were in no way prejudiced by the amendment after the ten days' notice which he had been given. If he could not prepare a defense in ten days, it was unlikely that he could have done so in the two additional days. What was said in State v. Stevens, supra, on the question of sufficiency of the information is applicable here. See, also, State v. Shannon, 95 Mont. 280, 26 P.2d 360, for related matter and the modern trend in criminal procedure.

We are not impressed with the contention that defendant was prejudiced by the indorsement of the additional names on the information the morning of the trial. Ten days' notice of three of these names had been given. Of the remaining seven, only four testified. Section 11805, Revised Codes, provides: "The county attorney must indorse upon the information at the time of filing the same, the names of the witnesses for the state, if known." The record shows affirmatively that the county attorney conformed to the command of the statute, both in letter and spirit. There is no showing that he knew at the time of filing the information that any of the additional seven would be material witnesses. See State v. McDonald, 51 Mont. 1, 6, 149 P. 279; State v. Akers, 105 Mont. ___, 74 P.2d 1138, 1143.

The determinative question is as to the existence of corroborative evidence sufficient to sustain the judgment. We enter upon a consideration of the evidence guided by the controlling statute, section 11988, Revised Codes, and with the settled constructions of its meaning in mind, as set forth in State v. Bolton, 65 Mont. 74, 212 P. 504, and State v. Jones, 95 Mont. 317, 26 P.2d 341, and recently reviewed and approved in State v. Akers, supra. The statute provides as follows: "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 thereof."

In order that the discussion of the evidence may be more easily understood, a few facts should be mentioned in addition to those set out in the information. The building described was, at the time of the attempted arson, an asset of the estate of defendant's deceased mother. Defendant was administrator of the estate and sole heir thereto. The building was insured for the sum of $3,000.

The testimony of Harold A. Sayer, confessed accomplice, a witness called by the state, was substantially as follows: He testified that he had known defendant for six or seven years but not intimately; that he had never had any business dealings with him; that he himself was living in Red Lodge at the time of the attempted arson and had been residing there for two years; that prior to that time he lived in Billings, where he was acquainted with defendant; that he was not personally familiar with the Gaffney building in Terry, the object of the attempted arson, prior to his visit to it the night he made the attempt to burn it, but that he had been in Terry before and "knew his way around."

He said that defendant had conversed with him about the building at Red Lodge in July, 1936, and at that time told him, "He had this old rattle-trap building about ready to fall down and which he would like to get rid of because it wasn't paying him anything." Sayer said he was interested and agreed to burn it down for 10 per cent. of the entire proceeds of the insurance. He said these negotiations occurred at the first meeting between the parties in Red Lodge in July, 1936; that in September of that year defendant called at his home and took him for a short ride and told him "anytime I wanted to come down to Terry it would be all right, and that the place was all ready to burn." He said that defendant then drew a map for his guidance. This map was on a piece of paper on one side of which there appeared a rough drawing of the streets and alleys and certain buildings in Terry, showing the Gaffney building with a big boot on the front of it. The ground floor of the building was at the time occupied by a shoemaker, and the boot was his sign. On the reverse side of the paper was a rough drawing of the interior of the building--particularly the upper floor. This map was later found on the person of Sayer shortly after the fire when he was arrested in Miles City. He testified that he made the trip to Terry on the evening of October 18, 1936, in the company of one Gene Sproul, a friend whom he had picked up at Billings and who merely went along because Sayer had asked him to go; however, he knew the object of the trip.

Sayer supplied himself with kerosene and excelsior with which to facilitate the starting of the fire. He arrived at Terry at about 11:30 p. m., and located the building by means of the map. He and his companion then went upstairs by an outside stairway, and scattered kerosene and excelsior about in preparation for the burning. He explained that the occupants of the ground floor were attracted by the noise and "hollered" and frightened them away. This part of the testimony was corroborated by the shoemaker and his wife. They then drove toward Miles City. Just as they entered the town of Miles City, they were arrested on notice given the sheriff of Custer county by the sheriff of Prairie county. Shortly after the arrest, the parties were searched and some member of the sheriff's force took the map from Sayer's pocket.

Sayer testified that the next time he saw defendant was in Helena at the Harvey Hotel, in November, 1936. He said he went there at the solicitation of one Waugh, an insurance investigator and on the advice of his own attorney. He said his sole purpose in going to Helena was to satisfy Waugh that defendant would recognize him. He explained that a room was procured for him at the Harvey Hotel; that he was directed by Waugh and one Parsons, deputy state fire marshal, to contact defendant who had a room at the same hotel. He made several attempts to 'phone him, but was informed each time that he had company and could not see him just then. He tried to get defendant to come to his room, but did not succeed; that finally defendant asked him to come on down to his room, which he did; that when he arrived there he was introduced to two of defendant's friends, Kibler and Downs. He said he...