State v. Harmon, 9959

• Decision Date: 01 June 1959
• Docket Number: No. 9959,9959
• Citation: 340 P.2d 128,135 Mont. 227
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas Henry HARMON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 128

340 P.2d 128

135 Mont. 227

STATE of Montana, Plaintiff and Respondent, v. Thomas Henry HARMON, Defendant and Appellant.

No. 9959.

Supreme Court of Montana.

Submitted Jan. 22, 1959.

Decided June 1, 1959.

James E. Purcell, Butte, for appellant.

Forrest H. Anderson, Atty. Gen., James A. Robischon, Asst. Atty. Gen., James A. Robischon, Asst. Atty. Gen., and Robert J. Holland, Butte, argued orally, for respondent.

LESTER H. LOBLE, District Judge, sitting in place of HARRISON, Chief Justice, delivered the Opinion of the Court.

Defendant was found guilty of first degree burglary committed in Butte, Silver Bow County, Montana, on or about the 13th day of February 1957. He was sentenced to ten years confinement in the state penitentiary at Deer Lodge, Montana. A prior conviction was charged in the information and at the trial it was proved that defendant had previously served a five year sentence in the same prison on a plea of guilty to a like offense.

The Plea.

Defendant pleaded not guilty, requested counsel, did not testify, invoked the rule of exclusion, introduced no testimony, but at the close of the state's case asked dismissal for lack of evidence and failure to prove burglary as charged. Motion was denied.

The Verdict.

Following the verdict, defendant moved for a new trial on the ground that the verdict was contrary to the law and the evidence. Defendant appeals from the judgment, specifying error in that the trial court refused to grant his 'motion for dismissal', and refused to grant him a new trial.

The Facts.

Defendant was convicted on the testimony of an accomplice, corroborated by circumstantial evidence. Sufficiency of corroboration is the sole question presented on appeal.

The facts testified to by Carter, a Negro and the accomplice, are these: Thomas Henry Harmon, the defendant and a white man, and the witness had been acquainted about eight years. They met in the state penitentiary at Deer Lodge, Montana. When Harmon was released does not appear, but the witness had been released from Deer Lodge only two days before the present crime was committed.

A third person, Keith McMann, acted as a lookout, shared the loot and was arrested the next day with Harmon and Carter. McMann did not testify and does not otherwise figure in Harmon's trial and appeal.

The victim was Malcolm L. Ferns, a cripple who had lost a leg and walks on crutches, a pensioner living on a meager social security disability income. At the time of the burglary, Ferms resided in apartment No. 16 of a Butte rooming house located at 209 Colorado Street, apparently alone. It was Ferns' custom to convert his monthly disability payment into traveler's checks as soon as he received it.

The loot was four uncountersigned American Express Company traveler's checks, one $10 bill and one $5 bill and less than $5 in silver and change. All this was removed by Harmon, according to Carter, in the burglary of Ferns' room. The checks were immediately passed by Harmon to Carter. The next day Carter forger Ferns' countersignature and cashed three of the checks to buy merchandise for Harmon, himself and McMann. The fourth check was lost or discarded and was found in the street.

On the night of February 13-14, 1957, Ferns was drinking in various Butte bars, among others the Silver Dollar and the Oasis. During the same evening Harmon and Carter were in Butte, and in and out of the Silver Dollar Bar until closing time. Comparatively few Negroes reside in Butte, and the presence of Harmon and Carter together was noticed. Ferns was in the Silver Dollar early in the evening and from there was helped across the street to the Oasis Bar by two 'Good Samaritans', not otherwise identified.

In the Oasis, Ferns cashed one of his remaining $20 traveler's checks, 'timbered' (paid cash) 'across the plank' (the bar top) for drinks for the house and laid his checks and money out on the bar, and he also bought a bottle of wine to take home against the chill of the February night. Harmon was seated around the elbow of 'the plank', two or three stools away, obviously sizing up the situation.

From the Oasis, Ferns went home by taxi and to bed. He picked up his checks and money. Harmon finished his drink and in about twenty minutes drifted across to the Silver Dollar. There he invited Carter to join him in a burglary. The time was only about 11:00 o'clock and Harmon cautioned they must wait a while. About midnight, Harmon, Carter, and McMann proceeded to Ferns' room, a few blocks away. McMann waited outside as a lookout. Carter stood in the hallway just outside Ferns' room door.

Using a 'loid' (strip of celluloid, a common burglary tool) Harmon, according to Carter, compressed the spring on the door lock, worked back the latch, entered Ferns' room, turned on the light and took Ferns' checks and money. Ferns slept on.

When Ferns awoke the next morning, he called the Oasis and asked if the swamper had found his checks. When told that 'nothing was on the back bar', and that no money had been found when the floor had been cleaned, Ferns stopped payment on the checks and reported them to the police as lost.

Harmon, according to Carter, had removed the checks and money, but had immediately passed the checks to Carter. At the trial, Carter emphasized that he had not entered the room and that Harmon had not entered any store with Carter to cash any of the stolen traveler's checks.

Outside, Carter tore the traveler's checks from the book and threw the cover down on the street. Then the three men returned to the Silver Dollar Bar, split the currency and ordered a fresh round of drinks.

Either as they were returning from Ferns' room or some time later during the night, Carter or one of the others lost or threw away one of the uncountersigned traveler's checks. It was found in the morning not far from Ferns' rooming house by two women walking to a church meeting. These women assumed the check had been lost, but when they saw Ferns' name in a burglary story in the afternoon Butte paper, they turned the check over to the police. By then Harmon and Carter (McMann's disposition is not shown) were already back in jail.

Legal closing time for bars in Montana is 2:00 a. m. At 2:30 a. m. Harmon was picked up again in the neighborhood of Ferns' rooming house, by night police answering a prowler call. He was searched and booked as a drunk, but was released in the morning when the woman who had reported a prowler could not identify him. The officers noticed that Harmon was carrying a small pocket flashlight and two celluloid strips of the kind commonly used by burglars, one of the strips having a blue marking band. Carter volunteered that he had sent a taxicab around to the city jail in the morning for Harmon, but Harmon had already been turned out.

Harmon, Carter and McMann were arrested before noon on the complaint of a Butte haberdasher from whom Carter bought a hat for Harmon paying for it with one of Ferns' traveler's checks to which Carter crudely forged Ferns' countersignature. When arrested, Carter had a wrist watch which he had just bought in another Butte store, using two other of Ferns' checks. While Carter shopped, Harmon and McMann waited at the curb in the Cadillac the three were driving, but the two white men with the Negro had been seen together cruising the Butte winter streets by too many Butte citizens that morning not to have escaped suspicion. When arrested, Harmon was wearing the newly purchased hat and had the two celluloid strips still in his coat pocket, one being a strip with the blue band. The police soon found the cover for Ferns' book of traveler's checks in the street where Carter told the police they would find it.

Briefly summarizing the corroborated evidence against the defendant Harmon, it may be seen that:

1. The accused was in the victim's presence when Ferns 'timbered' at the Oasis Bar.

2. The accused was in position to learn the location of the victim's room from the address Ferns gave the taxicab driver (assuming the accused did not already know it).

3. Each time the accused was arrested he was carrying two 'loids', one with a blue mark; several police officers saw these at the time of each arrest; the accomplice testified the accused used a 'loid' and carried two, one with a blue mark.

4. The accomplice said he threw Ferns' check book cover down in the street. The police found it where the accomplice said he had thrown it. The two women found the fourth check in the same neighborhood.

5. The accused and the accomplice were together in various Butte bars before and after the time of the burglary; also they were together on the shopping expedition the following day.

6. The accomplice said he forged Ferns' countersignature to two of Ferns' checks to buy a wrist watch. When the accomplice was arrested he had the wrist watch.

7. The accomplice said he used another of Ferns' traveler's checks to buy the accused a hat. When arrested the accused, Harmon, was wearing the hat.

8. The accomplice and the accused, and McMann, were together during the morning of their arrest. The accomplice, a colored man, was seen in the company of two white men, with a small dog, all cruising the Butte streets in a Cadillac the morning of their arrest. The jeweler who was bilked out of the watch reported them to the police. So did the haberdasher who was bilked out of the two hats, immediately he noticed that the countersignature on the traveler's check was a forgery.

9. They were acquainted, served time together in the Montana State Prison at Deer Lodge.

These are but a few of the corroborating facts found in the transcript.

On this showing, the jury convicted Harmon of first degree burglary and the court sentenced Harmon to ten years in the state penitentiary. For both Carter and Harmon it was a second offense. Carter, admittedly guilty of burglary and also of forgery, had been outside the state penitentiary barely seventy-two...