State v. Herrald, 12170

• Decision Date: 06 September 1978
• Docket Number: No. 12170,12170
• Citation: 269 N.W.2d 776
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Richard HERRALD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 776

269 N.W.2d 776

STATE of South Dakota, Plaintiff and Respondent, v. Richard HERRALD, Defendant and Appellant.

No. 12170.

Supreme Court of South Dakota.

Submitted on Briefs May 11, 1978.

Decided Sept. 6, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Randal E. Connelly, Pennington County Asst. Public Defender, Rapid City, for defendant and appellant.

PORTER, Justice.

CASE SUMMARY

This is an appeal from a conviction for grand larceny in violation of SDCL 22-37-1 and 22-37-2. ¹ Defendant urges that the evidence was insufficient to sustain the jury verdict. We hold that the State's evidence, while circumstantial, was sufficient to support a rational theory of defendant's guilt, and we therefore affirm his conviction.

FACTS

Willard Lage, a building contractor, owned building materials which he had stored near Corral Drive in Rapid City, just north of his house. There were four "bunks," or pallets, of cedar shake shingles in that area at 4:30 p. m. on July 28, 1976.

Mr. and Mrs. Robert Stephens lived about two blocks north of Lage's house. Mrs. Stephens saw a dark colored pickup truck with a high box traveling up Corral Drive in the direction of Lage's storage area. This took place sometime after 10:30 p. m. on July 28. A few minutes later she saw the same truck come down the hill. Later she saw it go back up Corral Drive.

At about 12:05 a. m. July 29, Mr. Stephens saw a vehicle answering the same At about 3:05 a. m. on July 29, Stephens saw what looked like the same truck drive up Corral Drive and into Lage's storage area. He called Lage and told him what he had seen. The two men then went to the storage area in Lage's car. The truck was backed up to the area where the cedar shakes were stored. Lage determined that approximately two and one-half bunks of shakes were missing.

description leave Lage's storage area and start down Corral Drive. He did not know how many people were in the truck, could not identify anyone, and did not see in the back of the truck. A similar truck was also seen parked on Corral Drive sometime between 11:45 and 12:15 on the same night.

There were three men in the truck. Lage inquired what their business was and why they were on his property. One of the men indicated they had stopped to urinate and have a drink. He stated that they were about to leave. Lage then blocked the truck with his car, while Stephens went to call the sheriff's office. Defendant was one of the three men in the truck at this time.

Deputy Sheriff Kenneth Gardner arrived about forty-five minutes later. He inspected the truck and the area, and then arrested defendant and his two companions. Two pieces of wood were found in the truck: one was a "strapping slat" used to protect cedar shakes from the metal strapping which holds bundles together. The other was a small piece of cedar shake. After taking defendant and the other two suspects to jail, the deputy returned and found in the truck a packaging slip from a bundle of cedar shakes. It was identical to tags on the bundles left at the scene. Lage testified that these cedar shakes were the only ones he had ever seen with this type of label.

The next morning, a deputy sheriff talked to defendant, who denied knowledge of any theft. The deputy took defendant's clothes and sent them, together with the piece of cedar shake from the suspect truck and cedar shakes from Lage's storage area, to the Federal Bureau of Investigation in Washington, D. C. They were analyzed by an F.B.I. expert who testified that the clothes contained wood shavings, splinters, or sawdust of Western Red Cedar. This was the same species of tree from which the shakes sent to the F.B.I. were cut.

Defendant called witnesses who testified that he was in a bar drinking from about 7:30 p. m. to about 2:30 a. m. with the exception of a period from 9:10 p. m. to 10:20 p. m. or 10:45 p. m.

There was evidence that two individuals could load two and one-half bunks of cedar shakes in less than twenty minutes, and that it would take about ten minutes to unload them.

Appellant was found guilty of grand larceny after trial by jury.

ISSUE

The issue presented by this appeal is: Was the evidence sufficient to support the verdict?

DECISION

The State's evidence in this case was circumstantial. We have held, however, that circumstantial and direct evidence are of equal weight, and that all the elements of a crime may be proved by circumstantial evidence. State v. Rober, 86 S.D. 442, 444, 197 N.W.2d 707, 709 (1972).

In reviewing a conviction on appeal, we must accept "that evidence, and the most favorable inferences which can be fairly drawn therefrom, which will support the verdict." State v. Best, S.D., 232 N.W.2d 447, 457 (1975). The verdict will not be set aside if the evidence and reasonable inferences, which can fairly be drawn therefrom, sustain a rational theory of guilt, State v. Dietz, S.D., 264 N.W.2d 509, 510 (1978).

Defendant claims that the evidence presented is insufficient to prove two elements of grand larceny: (1) That defendant took the property of another; and (2) that he had the specific intent to deprive the owner of his property. We will thus review the evidence tending to prove these elements in light of the above standards for appellate review.

The State presented evidence which tended to prove defendant's participation in the crime. He was present when the truck was found at Lage's storage area shortly after 3 a. m. At that time the engine was...