State v. Henry

• Decision Date: 28 August 1973
• Docket Number: No. 11153,11153
• Citation: 87 S.D. 454,210 N.W.2d 169
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Joseph HENRY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 169

210 N.W.2d 169

87 S.D. 454

STATE of South Dakota, Plaintiff and Respondent, v. Joseph HENRY, Defendant and Appellant.

No. 11153.

Supreme Court of South Dakota.

Aug. 28, 1973.

Donald R. Shultz, of Whiting, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for defendant and appellant.

Walter W. Andre, Asst. Atty. Gen., Kermit A. Sande, Atty. Gen. (on the brief, Pierre, Jack T. Klauck, State's Atty., Rapid City, for plaintiff and respondent.

WINANS, Justice.

The defendant, Joseph Henry, conviced of the crime of attempted third degree burglary with intent to commit larceny, appeals such conviction by assignments of error which present the following questions for review:

(1) Sufficiency of the evidence to identify defendant as the person who committed the crime;

(2) Sufficiency of the information (3) Lack of definition of certain words in the court's instructions.

Under the assignment having to do with the sufficiency of the evidence, the defendant contends that the evidence, direct or circumstantial, fails to identify the defendant other than by mere speculation and conjecture on the part of the jury. The evidence given at the trial was wholly on behalf of the state's case, the defendant offering no evidence. As a reviewing court we must view the evidence in light most favorable to the state on appeal from a conviction. This court held in State v. Geelan, 1963, 80 S.D. 135, 120 N.W.2d 533, 536:

'Accepting the state's evidence and indulging the most favorable inferences which can fairly be drawn therefrom, as the jury had a right to do, we have no hesitancy in holding that the evidence is sufficient to sustain the verdict.'

The North Dakota Supreme Court has so held in State v. Moe, 1967, 151 N.W.2d 310.

The evidence on behalf of the state stands undisputed and the material facts to the issue involved are:

City police officer, Charles B. Johnson, on January 19, 1972 at approximately 4:00 o'clock A.M. was traveling in his patrol car at 10 to 15 miles per hour in the vicinity of Star Liquor Store in the 1100 block of Main Street in Rapid City, Pennington County, South Dakota. He observed two individuals standing in the northeast door of the Star Liquor Store. Johnson drove beyond, or to the west of the liquor store, stopped and drove in reverse for a 'bootlegger turn'. When the vehicle was turned the lights focused on the two individuals in the doorway of the Star Liquor Store and they took off, running. Officer Johnson testified that he recognized the smaller one of the individuals as a Mr. Prue. When the two individuals ran, Officer Johnson jumped out of the patrol car and took after them on foot. When Officer Johnson first saw these two individuals and before he left his car, he had communicated with headquarters that there was a burglary in process and he also notified another officer, named Price. The two whom Officer Johnson was chasing separated, running in different directions. Officer Johnson testified to the following:

'Q Now, then, continue and tell the jury exactly what you did after you left the patrol car and you kept Walter Prue in your sight, I believe.

A Right.

Q And you lost sight of the other individual?

A Yes.

Q. Tell the jury what happened.

A Mr. Prue ran more in an easterly direction along side the tracks, and I yelled at him to halt, and at that time Sergeant Price came upon him from Rapid Street on to 11th Street, and Mr. Prue threw his hands in the air.

Sergeant Price departed from his patrol unit and apprehended Mr. Prue, and at that time I yelled at Sergeant Price, 'Do you have him,' and he said, 'Yes,' and I took after the other individual I had lost sight of.

I went around the front of D & J Auto out to Main Street, looked up and down the street, saw nobody, went back behind the building of D & J Auto where there was an abandoned vehicle. I continued to search the vehicle, and I found Mr. Joe Henry lying under an abandoned pickup.

Q Now, this Mr. Joe Henry, is he present in the courtroom?

A Yes.

Q Would you point to him, please.

A Sitting next to counsel.

MR. KLAUCK: Let the record show the witness had pointed to the defendant.'

Officer Johnson also testified that the pickup under which he found the defendant was 75 to 80 feet from the rear of Star Liquor and that from the time he first drove upon these individuals until he found Mr. Henry underneath the pickup was approximately two minutes. He further testified that when Mr. Henry came out from under the pickup, 'Mr. Henry was breathing quite heavily and perspiring', that the temperature was 'cold and snowing.' He further testified that when he lost sight of the individual with Prue was when the individual rounded the corner of an old vehicle and that that vehicle was approximately 30 feet from the vehicle under which Henry was found. On cross-examination, Officer Johnson testified as follows:

'Q Lieutenant Johnson, as I understand it, when you first located Joseph Henry the Defendant here he was under a parked pickup; is that right?

A Yes.

Q And you are not able to say, are you, sir, tat the man you found under the pickup, that is, Joseph Henry was the same--one and the same man you saw at the Star Liquor

A No, sir.'

We recognize that in the absence of evidence of participation a conviction cannot be sustained on the basis of defendant's presence at the scene of the crime. United States v. Irons, 1973, 8 Cir., 475 F.2d 40. Mere presence at the scene of a crime is not enough to prove defendant committed the offense. State v. Jellema, 1973, Iowa, 206 N.W.2d 679; State v. Peck, 82 S.D. 561, 150 N.W.2d 725.

It is well established that in criminal as well as civil actions issues may be established by circumstantial evidence and circumstantial evidence alone may justify conviction providing it is of such probative force as to enable the trier of fact to say that defendant is guilty beyond a reasonable doubt. State v. DePriest, 1973, N.D., 206 N.W.2d 859. It was held in State v. Johnson, 1940, 67 S.D. 459, 293 N.W. 822, that:

"To warrant a conviction for crime on circumstantial evidence alone, the circumstances taken together should be of a conclusive nature, and leading on the whole to a satisfactory conclusion, and pointing to a moral certainty that the accused committed the offense charged; and it is invariably the rule of law that, to warrant a conviction upon circumstantial evidence alone, such facts and circumstances must be shown as are consistent with each other, and consistent with the guilt of the party charged, and such as cannot by any reasonably theory be true and the party charged be innocent; * * *."

(citations omitted)

Further guidelines on the weight and sufficiency of circumstantial evidence are found in State v. Scott, 84 S.D. 511, 173 N.W.2d 287.

It is also 'a general rule that the question of identity is a question for the jury, as is also the credibility of the witness, or witnesses, testifying as to identity, and the weight to be given the testimony.' State v. Johnson, supra.

We think the evidence in this case, though circumstantial, was sufficient to identify appellant as a participant in whatever crime was being committed. His identification as a participant is borne out by the fact that he fled, that within two minutes he was captured under a vehicle 75 feet from the building being burglarized, 30 feet from a vehicle where he was last seen, on a cold night, breathing heavily and perspiring. This is all circumstantial evidence and we believe it to be sufficient. State v. Rodden, 1972, S.D., 201 N.W.2d 232, 234. These issues were presented and argued to the jury whose conclusion is based upon competent evidence.

The defendant also complains of the information which charged:

'That the Defendant, Joseph Henry, at Rapid City, in said Pennington County, State of South Dakota, on or about the 19th day of January, A.D. 1972, then and there being did then and there, wilfully and unlawfully, and feloniously did attempt to break and enter into a building, to-wit: Star Liquors, 1110 West Main Street, Rapid City, South Dakota, said building not being the property of the defendant, in which building property was kept, with intent to commit larceny as defined in SDCL 22--32--9, in violation of SDCL 1967 22--4--1'.

It is defendant's contention that the description, 'Star Liquors' is insufficient to indicate who owned the building and that the allegation of ownership is not satisfied by 'said building not being the property of the defendant', and that the failure of allegation of ownership is a material allegation, quoting State v. Ham, 1908, 21 S.D. 598, 114 N.W. 713. We note that SDCL 23--32--14 provides as follows:

'Larceny or private injury--Effect of erroneous allegations.--When an offense involves the commission of larceny or the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identity the act, an erroneous...