State v. Helmenstein

• Decision Date: 10 December 1968
• Docket Number: Cr. N
• Citation: State v. Helmenstein, 163 N.W.2d 85 (N.D. 1968)
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Virgil HELMENSTEIN, Defendant and Appellant. o. 371.
• Court: North Dakota Supreme Court

Page 85

163 N.W.2d 85

STATE of North Dakota, Plaintiff and Respondent, v. Virgil HELMENSTEIN, Defendant and Appellant.

Cr. No. 371.

Supreme Court of North Dakota.

Dec. 10, 1968.

Syllabus by the Court

1. In North Dakota, a conviction may not be had upon the testimony of an accomplice unless his testimony is corroborated by such other evidence as tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Sec. 29--21--14, N.D.C.C.

2. Every material fact testified to by an accomplice need not be corroborated. All that is required is that the corroboration tend to connect the defendant with the commission of the offense.

3. An accomplice is one who knowingly, and with criminal intent, participates, associates, or concurs with another in the commission of a crime.

4. Every person who is concerned in the commission of an offense, whether he directly commits the act or procures, counsels, or aids and abets in its commission, is guilty as a principal.

5. Where circumstances show a common plan of several persons to do an unlawful act, to which all assent, whatever is done in furtherance of the original design is the act of all. Each one need not take an active part in the commission of the crime to make him guilty of it.

6. A witness who was present when a burglary was planned, who agreed to it, who went with the others to the place to be burglarized, who waited in the car and took no part in the actual break-in but slept while the actual burglary was committed, who then helped concoct a story to tell investigating officers in the event that any of the party should be questioned, and who helped divide the loot, was an accomplice even though he may have had secret objections to the burglary, which he did not express.

7. For reasons stated in this opinion, the judgment and sentence of the trial court is reversed and the complaint against the defendant is dismissed.

Helgi Johanneson, Atty. Gen., and Gerald W. VandeWalle, Asst. Atty. Gen., Bismarck, and Gerald D. Galloway, State's Atty., Center, for plaintiff and respondent.

Josiah C. Blaisdell, Hazen, for defendant and appellant.

STRUTZ, Judge.

This is an appeal from the district court of Oliver County. The defendant was informed against on a charge of burglary of a grocery store in Hannover. The case came on for trial before the Honorable Emil A. Giese, one of the judges of the Sixth Judicial District. Trial by jury was waived by consent of the defendant and the State's Attorney, expressed in open court and entered on the minutes of the court, as provided for in Section 29--16--02, North Dakota Century Code. After trial, the court found the defendant guilty of the offense as charged. This appeal is from the judgment of conviction and from an order denying the defendant's motion for new trial.

Several grounds are urged by the defendant as the basis for his appeal. He asserts that the trial court erred in denying his motion to segregate, separate, and sequester the witnesses for the State. He further contends that there was no corroboration of testimony of witnesses for the State who were accomplices of the defendant in the commission of the offense; that, as a consequence, the evidence against the defendant was insufficient under the law to convict him of the offense charged.

The record discloses that, on the night of the alleged burglary, two groups of young people had been driving around in the vicinity of Center, North Dakota. During the evening, these two groups met at the park in Center. Someone in one of the groups had obtained some beer, and this was passed around and all of them drank some of it. After a while, they all decided to get into one of the automobiles and ride around. They got into the defendant's car. A short time later, someone suggested that they drive to Hannover, about six miles west of Center, and break into the store at that place. When this suggestion was made, one person in the party said she wanted some bananas. Someone else expressed a desire for other articles which could be secured at the store. They drove over to Hannover and parked the car some distance from the store, and three of the party, including the defendant, went to the store, broke in, and returned with beer, cigarettes, candy, and bananas. They then drove back toward Center. On the way, the parties all agreed on what story they would tell the officers of the law if any of them should be questioned. At Center, they divided the loot and separated.

At the trial, five of the young people who had been in this party testified for the State against the defendant. The only witness other than those who were in the party on the night of the burglary was Harold Henke, the owner of the store that had been burglarized. His testimony established that he owned the store, that on the morning following the burglary he found that the store had been entered during the night, and that approximately $130 worth of merchandise had been taken. His testimony in no way connected the defendant with the offense, but merely established the fact that a crime had been committed.

The trial court found the defendant guilty. It found that Glen Zahn, who was one of the group of young people who had been in the party, was not an accomplice because he had taken no active part in the commission of the burglary and that he had fallen asleep after the party had reached Hannover and while the actual burglary was being committed. The trial court further found that the witness Zahn had had too much beer and was, in fact, pretty well under the influence at the time of the commission of the crime.

From the judgment entered and an order denying the defendant's motion for new trial, the defendant had taken this appeal.

The first question for us to consider is whether there was competent evidence against the defendant sufficient to sustain the judgment of conviction. Our statute provides that a conviction may not be had upon the testimony of an accomplice unless his testimony 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. Sec. 29--21--14, N.D.C.C.

This court has held that the testimony of an accomplice does not warrant a conviction unless it is corroborated by other evidence to connect the defendant with the offense. State v. Todd, 62 N.D. 479, 244 N.W. 25 (1932).

However, every material fact testified to by an accomplice need not be corroborated. State v. Marcovitz, 63 N.D. 458, 248 N.W. 481 (1933).

All that is necessary is that the corroboration tend to connect the defendant with the commission of the offense. State v. Foster, 69 N.D. 428, 287 N.W. 517 (1939).

The first issue facing us is the determination of the status of those persons who were members of the party of young people on the night of the alleged burglary who were called as witnesses by the State. If all of them were accomplices, then clearly the evidence against the defendant in this case is insufficient to support his conviction, for there is no evidence tending to connect him with the offense.

Certain rules have been adopted by which a determination can be made of the status of persons who are alleged to be accomplices. Some of these rules are:

An accomplice is one who knowingly, and with criminal intent, associates or concurs with another in the commission of a crime. State v. Shields, 81 S.D. 184, 132 N.W.2d 384 (1965); State v. Johnson, 81 S.D. 600, 139 N.W.2d 232 (1965).

Merely helping to dispose of stolen goods, without any other connection with the offense, even knowing the goods to be stolen, does not make a person an accomplice in the burglary. Taylor v. State, 391 P.2d 950 (Alaska 1964).

A person who has been coerced into participating in a crime has been held not to be an accomplice whose testimony must be corroborated. People v. Bias, 170 Cal.App.2d 502, 339 P.2d 204 (1959).

It has also been held that the mere presence or the silent acquiescence of a person, in the absence of a duty to act, does not make such person an accomplice. Galloway v. Commonwealth, 301 Ky. 299, 191 S.W.2d 821 (1946); Underhill on Criminal Evidence, 5th Ed. (1956), Vol. 1, Sec. 175, p. 339.

Numerous decisions have laid down the rule that an accomplice is a person who unites in, or in some way is concerned in, the commission of a crime for which the accused is on trial. Underhill, at p. 329.

The grade of guilt of such witness is not important, so long as he was in some way concerned in the commission of the offense. The test seems to be whether the witness could be charged with the same offense for which the defendant is being tried. Underhill, at p. 331.

Some courts have held that a person is an accomplice if the had any part in the offense, even though he cannot be charged with the crime. People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L.R.A., N.S., 704.

Our own court has held that the test by which to determine whether one is an accomplice of the defendant on trial is whether such person can be indicted and punished for the crime with which the defendant is charged. State v. Noel, 66 N.D. 676, 268 N.W. 654 (1936). In the Noel case, the alleged accomplice was the victim of rape by the defendant, and this court held that the victim of rape could not be prosecuted for the offense and therefore she was not an accomplice.

It has also been held that the mere fact that the grand jury has refused to charge the witness with the offense for which the defendant is being tried does not determine whether or not such witness was an accomplice. State v. Weston, 109 Or. 19, 219 P. 180 (1923).

As pointed out above, mere presence alone is not enough to make a witness an accomplice. In the case of People v. Howard, 226 Cal.App.2d 281, 37 Cal.Rptr. 918...