State v. Gardner

• Decision Date: 29 November 1933
• Docket Number: 5365
• Citation: 27 P.2d 51,83 Utah 145
• Court: Utah Supreme Court
• Parties: STATE v. GARDNER et al

27 P.2d 51

83 Utah 145

STATE v. GARDNER et al

No. 5365

Supreme Court of Utah

November 29, 1933

Appeal from District Court, Sixth District, Piute County; N. J Bates, Judge.

John W Gardner and another were jointly tried and convicted of grand larceny, and named defendant appeals.

AFFIRMED.

J Vernon Erickson, of Richfield, for appellant.

Joseph Chez, Atty. Gen., and John D. Rice, Deputy Atty. Gen., for the State.

ELIAS HANSEN, J. FOLLAND and MOFFAT, JJ., concur. STRAUP, C. J., EPHRAIM HANSON, J. dissenting.

OPINION

ELIAS HANSEN, J.

The defendant, John W. Gardner, was convicted of the crime of grand larceny and sentenced to serve an indeterminate term in the state prison. He appeals. He attacks the judgment solely upon the ground that there was no evidence other than the testimony of an accomplice to connect him with the commission of the crime of which he was convicted. Defendant Colburn was tried jointly with appellant but the former has not appealed. The cause is thus here on the appeal of Gardner only.

The following is a summary of the state's evidence: Moroni Barney testified that he resided at Elsinore, Utah; that during the summer of 1931 some of his cattle were being pastured by Walter Ogden; that among the cattle was a heifer between one and two years old; that the heifer was bluish roan in color; that it was branded M B on the left ribs; that an ear tag upon which was his name and address was on the ear of the heifer; that in July, 1931, he saw the hide of the heifer when it was shown to him by the sheriff of Piute county; that he did not give his consent to any one to kill the heifer; that on July 23, 1931, the defendant Gardner came to him while he was cutting grain and stated that he, Gardner, "wanted to trade for a heifer * * * a kind of a blue or roan holstein looking heifer. * * * And he asked me what I would take for it and I said I didn't know hardly, I would have to see it. So I told him one of these days I would drive up and look at it and see what I would take. So he says, 'a friend of mine killed it.' He says, 'I would like to settle with you for it.' He says, 'He was a poor man. * * * I have not got anything right now, but I will sign a note or do anything that I can.' He told me about the ear tags and the brands"; that after he had the conversation with the defendant, the sheriff of Piute county brought a hide; the hide was just like the one defendant Gardner described; that the hide was badly decayed; that he was unable to find the brand on it; that later on the same day defendant Gardner "called me to one side * * * he told me that this man that killed this calf was Walt Baker. He said he would like to get a Bill of Sale and have it dated along the latter part of June."

Walter Ogden testified that he resided at Richfield, Utah; that in April, 1931, he received about eighteen head of cattle to pasture from Moroni Barney; that in July he went up to his property with the sheriff of Piute county; that they dug up a hide which was buried in some mulberry bushes on his property; that he recognized the hide as being from one of the animals he received from Moroni Barney; that he first noticed that the animal, from which the hide was taken, was missing in the latter part of June; that the hide was buried in Piute county, Utah; that it looked as though the animal from which the hide was taken had been killed there.

Irvine Allen, the sheriff of Piute county, testified that he assisted in digging up the hide and entrails of a heifer which was buried on the premises of Walter Ogden; that the place where the hide and entrails were buried was in Piute county, Utah; that after the defendant Gardner was arrested and while he was taking him and Colburn from Richfield to Junction, Gardner "volunteered the statement that, 'It is our own fault. If we didn't want to be in this kind of trouble we better behave ourselves; we got nobody to blame but ourselves for this.'"

v. M. Fairbanks, sheriff of Sevier county, testified that he arrested the defendant Gardner at Monroe on July 22; that while he was taking Gardner from Monroe to Richfield, Gardner said that Mr. Baker brought the heifer to his (Gardner's) place and that he and his wife and a Mrs. Johnson attempted to bottle the meat; that the meat was beginning to spoil because it had been allowed to remain in the car too long. Mr. Fairbanks further testified that he assisted in digging up an animal's hide and entrails which were buried on the premises of Walter Ogden; that the hide was apparently from a holstein calf and was a sort of roan in color.

Walter Baker testified that during the month of June, 1931, he in company with the defendants, Gardner and Colburn, went fishing in Sevier Canyon below Marysvale; that he went down the river fishing, leaving defendants, Gardner and Colburn, at the car; that some one took a gun out of the car but he did not know whether it was Gardner or Colburn; that when he was about 300 yards down the river he heard a shot; that in about three-fourths of an hour he lost his fish hook and returned to the car; that when he returned the defendants, Colburn and Gardner, said: "We have got a beef, will you help us pack it to the car?" that he assisted in carrying the beef to the car; that Colburn buried the hide and entrails; that the hide was of a bluish spotted color; that the meat was placed in the car and covered with a quilt; that they arrived at the residence of Gardner about 4 o'clock in the afternoon; that the meat was left in the car until after dark when it was taken out of the car and hung up in a tree; that the next morning the meat was taken into the home of Gardner and bottled by his wife and a Mrs. Johnson; that he received a beating from defendant Gardner, his brother-in-law, about the 1st of July but he did not say to defendant Gardner and his wife that he would get him one way or another.

Defendant Gardner testified in his own behalf. His wife and defendant Colburn also testified on behalf of the appellant. Their testimony, in the main, is in direct conflict with the state's evidence. Appellant admitted that he had a conversation with Mr. Barney with respect to the purchase of the calf in question. He further testified that he attempted to settle for the calf at the request of defendant Baker. He denied having had the conversations testified to by the sheriffs of Sevier and Piute counties.

It was upon substantially the evidence thus summarized that the cause was submitted to the jury and upon which the defendants Gardner and Colburn were found guilty of the crime of grand larceny. The provision of our statute relied upon by the defendant for a reversal of the judgment of conviction reads as follows:

"A conviction shall not 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 shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof." Comp. Laws Utah 1917, § 8992.

This court has frequently had occasion to pass upon the question of the character of the corroborating evidence which is, and which is not, sufficient to sustain a conviction. Among the cases dealing with that question are: People v. Lee, 2 Utah 441; State v. Spencer, 15 Utah 149, 49 P. 302; State v. Collett, 20 Utah 290, 58 P. 684; State v. James, 32 Utah 152, 89 P. 460; State v. Lay, 38 Utah 143, 110 P. 986, 987; State v. Hansen, 40 Utah 418, 122 P. 375; State v. Kimball, 45 Utah 443, 146 P. 313; State v. Park, 44 Utah 360, 140 P. 768; State v. Bridwell, 48 Utah 97, 158 P. 710; State v. Frisby, 49 Utah 227, 162 P. 616; State v. Baum, 47 Utah 7, 151 P. 518; State v. Powell, 45 Utah 193, 143 P. 588; State v. Elmer, 49 Utah 6, 161 P. 167; State v. Stewart, 57 Utah 224, 193 P. 855; State v. Butterfield, 70 Utah 529, 261 P. 804; State v. Cox, 74 Utah 149, 277 P. 972; State v. Laris, 78 Utah 183, 2 P.2d 243.

The rule which this court has uniformly held to be the test of the sufficiency of the corroborative evidence to sustain a verdict of guilty is that while such evidence may not in itself be sufficient to sustain a conviction, yet, it must implicate the accused in the commission of the crime charged. Corroborative evidence must be inconsistent with innocence and is not sufficient if it merely casts a grave suspicion on the accused. In this case the state concedes, as well it may, that the witness Walter Baker was an accomplice. There is no corroborative evidence independent of the statements which it is claimed appellant made to others after the crime was committed which tends to implicate him in the commission of the crime. The fact that appellant attempted to purchase the heifer from the owner was not necessarily inconsistent with his innocence of the crime charged. That fact together with the further facts that he knew the color of the heifer, of its brand and ear tag, may well be said to cast a grave suspicion upon him, but standing alone it is doubtful if such facts are sufficient to meet the requirements of the statute. The statements, however, which it is claimed appellant made to the sheriffs of Sevier and Piute counties tend to implicate him in the commission of the crime. We have a statute, Comp. Laws Utah 1917, § 8285, which defines larceny and which also provides that "possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt." According to the testimony of Sheriff Fairbanks, appellant admitted that he was in possession of the heifer within a few hours after it was killed. If the jury believed...