State v. Gangner, 9695
| Decision Date | 04 January 1957 |
| Docket Number | No. 9695,9695 |
| Citation | 130 Mont. 533,305 P.2d 338 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. E. T. GANGNER, Defendant and Respondent. |
| Court | Montana Supreme Court |
Arnold H. Olsen, Atty. Gen., Hubert J. Massman, Asst. Atty. Gen., James C. Wilkins, Jr., Co. Atty., Weymouth D. Symmes, Sp. Prosecutor, Lewistown, for appellant. James C. Wilkins, Jr., and Hubert J. Massman argued orally.
Walter E. Coyle, John T. Mullany, Robert J. Holland, Butte, for respondent. Walter E. Coyle argued orally.
Defendant was accused of the infamous crime against nature alleged to have been committed on or about April 29, 1955, with a fifteen year old boy. He was found guilty by verdict of the jury. His motion for a new trial was granted and the state has appealed from the order granting the new trial.
The sole question presented by the appeal is whether the evidence was sufficient to sustain the verdict.
At the trial defendant did not testify in his own behalf and he offered no evidence but rested at the close of the state's case. His contention is that since the boy involved was an accomplice as a matter of law and the court so instructed the jury there was not sufficient corroboration of this story to meet the requirements of R.C.M.1947, Sec. 94-7220. That section provides:
'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.'
Aside from the testimony of the boy involved, the record discloses the following facts: Defendant is a physician living in Lewistown, aged in the upper fifties. A classmate of the accomplice, prosecuting witness, and who was about the same age of the prosecuting witness, worked for defendant and stayed with him in his apartment in the spring of 1955. He introduced the prosecuting witness to defendant. On April 25, 1955, the three of them took a ride in defendant's automobile. The next day the two boys went to the defendant's office after school where they stayed until 5:00 p. m., after which they went with defendant to the home of the prosecuting witness where defendant was introduced to the parents of the boy. The understanding was that the prosecuting witness should stay at the apartment of defendant that night. That was the night the crime was committed according to the evidence of the accomplice. Later that evening they left the home of the parents in defendant's car and the prosecuting witness' boy companion was 'dropped off' at the theatre. After the show the boy companion went to defendant's apartment, arriving there late in the evening. As he said: 'It was ten or eleven, somewhere around there, I ain't sure.'
He found defendant and the prosecuting witness in the same bed and both were sleeping. He went to sleep in the front room on the davenport. The next night prosecuting witness stayed at the home of his parents. The following evening, shortly after 5:00 p. m., defendant again went to the home of the parents of the prosecuting witness and told the boy's mother that he was going to Butte the next day and wanted the boy to accompany him. This the boy did. Defendant wrote out an excuse for the boy to present to the school authorities accounting for his absence from school, stating that it was due to illness. When defendant rented his apartment he stated to the landlady that he wanted either a young man or boy to stay with him to help with the driving in case he was called at night. Defendant was asked by the landlady if he needed another bed, and he...
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State v. Kills on Top
...must raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. State v. Gangner (1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make ......
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State v. Rose
...must raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. State v. Gangner (1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make ......
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State v. Harmon, 9959
...than two men standing in a bar one white, one colored. Mere association is not sufficient to sustain this conviction. See State v. Gangner, 130 Mont. 533, 305 P.2d 338; State v. Keckonen, 107 Mont. 253, 84 P.2d 341, and State v. Searle, 125 Mont. 467, 239 P.2d The cashing of the traveler's ......
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State v. Williams
...must raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. State v. Gangner (1957), 130 Mont. 533, 535, 305 P.2d 338, 339. But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make ......