State v. Johnson

• Citation: 77 Idaho 1,51 A.L.R.2d 1386,287 P.2d 425
• Decision Date: 29 June 1955
• Docket Number: No. 8202,8202
• Parties: , 51 A.L.R.2d 1386 STATE of Idaho, Plaintiff-Respondent, v. Floyd JOHNSON, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 425

287 P.2d 425

77 Idaho 1, 51 A.L.R.2d 1386

STATE of Idaho, Plaintiff-Respondent, v. Floyd JOHNSON, Defendant-Appellant.

No. 8202.

Supreme Court of Idaho.

June 29, 1955.

Rehearing Denied Sept. 16, 1955.

James W. Blaine, Charles R. Donaldson, Boise, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., John M. Sharp, Sp. Asst. Atty. Gen., H. S. Forbush, Pros. Atty., Driggs, for respondent.

SMITH, Justice.

Respondent charged appellant with burglarizing the Tetonia Club in Tetonia, during early morning of December 29, 1952. Appellant stood trial and a jury found him guilty of burglary of the first degree. He appealed from the judgment of conviction and the order denying his motion for a new trial.

The entry of the Tetonia Club and the taking of four slot machines therefrom were observed by Mr. and Mrs. Berry living about 130 feet from the front of and across the street from the Tetonia Club building, who notified law enforcement officers by telephone of such entry.

About 4:30 o'clock A. M., December 29, 1952, during stormy weather with snow, a station wagon, without lights, driven on its driver's left hand side of the road, stopped at a point almost across the street from the Tetonia Club. Two men got out; they did not appear to be carrying any tools. They crossed the street and without hesitation entered the club building; shortly they came out of the building, each with a slot machine which he carried across the street and put into the station wagon. They returned to and entered the club building and came out, and each again carried a slot machine which he placed in the vehicle.

The two men then got into the station wagon and drove away without lights toward Driggs, and did not turn on the lights until at a turn in the road, after traveling about a city block.

The sheriff of Teton County and his deputy, who was also the marshal of Driggs, set up a road block on the highway at the north city limits of Driggs. No tracks appeared in the fresh snow on the highway. They were looking for a station wagon and when such a vehicle came along the driver failed to heed the stop signal but speeded up and ran the road block. The deputy then shot at and hit the front tire of the station wagon which, after traveling about 440 feet further down the road, went out of control on the west side of the highway, ran into a cement culvert or abutment and came to a stop. The two officers cautiously approached the vehicle, a 1952 Pontiac station wagon, which had been out of their sight for a short time and distance after it had stopped. The deputy sheriff observed human footprints leaving the vehicle on its right hand side. They found a man pinned in by the front seat which had been pushed ahead by a load of seven slot machines from behind. This man was Donald Lee Fedder, who was injured. The two officers took him to the county jail, which consumed about twenty minutes.

When the officers and two others returned to the wrecked station wagon the deputy observed an additional set of human footprints crossing the road and approaching the car from the left hand side, and then going around the car to the right hand door. A brown coat, a cap and sweatshirt, which the officers had observed previously, were gone from the interior of the car. The officers attempted to follow the tracks for a time but gave up and set a road block.

During the day of December 29, 1952, the sheriff and other officers ascertained that five slot machines had been taken from the Tetonia Club, but nothing else therein had been disturbed. One Williams owned the club and its contents, including the five machines, and he and his assistants at the club identified those machines as five of the seven machines found in the station wagon. No one who had anything to do with the club, being the owner, the manager and the bartender had arranged any sale, transfer or other disposition of any of the club's slot machines. Only the manager and bartender had keys to the club. The bartender, when he cleaned the club during Sunday afternoon, December 28, 1952, saw the machines therein. The officers also ascertained that the front door key would not work in the front door lock and the padlock on the back door had been twisted off and broken; tracks led from the back door around to the highway; marks were found on the front door and the door casing, made by a hard instrument, in the general area of the lock, and metal in the door frame, a part of the lock, was sprung.

A search was conducted for the man who had left the station wagon by its right hand door, leaving tracks. Late in the day of December 29, 1952, a man, appellant herein, was apprehended in a sagebrush field about five and one-half miles south of Driggs. He had about $800 on his person.

The foregoing facts and circumstances are not in dispute.

Additional undisputed, as well as disputed, facts and circumstances, will now be reviewed in the light of appellant's assignment of error, that the evidence is insufficient to sustain the verdict of the jury which appellant also urged in his motion for a new trial.

Appellant, testifying in his own behalf, stated that he was authorized by the federal government to deal in coin operated amusement devices, and had slot machine dealings with Fedder during the previous two and a half months; that with about $800 he left Boise with Fedder Sunday, December 28, 1952, about 3:30 to 4:00 o'clock P.M., driving his mother's 1952 Pontiac station wagon, to buy slot machines, arriving in Idaho Falls at about 9:30 that evening; then as appellant stated, Fedder met a man, whom appellant did not know, had not met and never did meet, and that Fedder and that man conversed out of hearing of appellant; then Fedder informed appellant that he, appellant, was not to be in on 'the transaction'. Appellant then decided to drive to Driggs and visit one Markham, his brother-in-law's brother; the other man would go to Driggs in his own car, a 2-door gray Chevrolet.

Appellant testified that then he and Fedder drove to Driggs, arriving there about 11:30 P.M., December 28, 1952; that the other man, waiting in his Chevrolet in front of a cafe, drove his car, following appellant and Fedder in the station wagon; that appellant got out at the north end of the city of Driggs, which he stated was in the vicinity of the Markham house; then Fedder, stating he would be back in about an hour, drove the station wagon toward Tetonia, and the other man followed in the Chevrolet. Here the Chevrolet, if such there was, disappears from the record.

Appellant, further testifying, stated that he went to the Markham house and finding it dark, did not try to arouse any occupant therein. Here Markham disappears from the record. Appellant then sat down in a 1938 Plymouth nearby where he stayed until he heard shots, which time, according to the deputy sheriff, was 5:12 A.M., the following morning; and then appellant got out of the Plymouth car and observed a man approaching who acted like he was hurt and winded; that appellant called to him and recognized him as the man he had previously seen in Idaho Falls; that this man told appellant that he and Fedder had a wreck and Fedder was hurt; that thereupon appellant decided to leave the vicinity since he knew somebody would be following the tracks made by this other man; and that he, appellant, would be detained if found there, since twice previously he had been convicted and sentenced for burglary, once during 1934 in Ada County, and again during 1939 in Portland, Oregon. Then appellant, stating he did not know who the man was, nevertheless volunteered to 'make a trail' for him and invited him to take appellant's place in the Plymouth car. Here the mysterious stranger and the Plymouth car, if such there were, disappear from the record.

Appellant stated that early morning aforesaid he was wearing a pair of dress trousers, a dress coat and no hat. He then ostensibly traced his movements up the highway to the station wagon, where he obtained his coveralls, brown coat and cap; his returning back to the vehicle after he had gone about a hundred yards, to get his sweatshirt and flashlight; his circling around in various directions, including going hand-over-hand along the top of a fence, thereby to throw officers off his tracks; his hiding in a barn and in a refrigerator crate therein during the daytime of December 29th, and his traveling afoot until apprehended during the evening of that day in the sagebrush field about five and one-half miles south of Driggs.

Appellant, upon being apprehended, admitted his remark to the sheriff, 'My name is Johnson; I want to see my attorney and how much is the bail.' During his testimony appellant was asked why he went back to the wrecked automobile, to which he answered, 'I went back to get my coat, it was cold.' When appellant was being transported to Driggs, after being apprehended, a witness remarked to him, 'A fine buddy you are, running off and leaving your buddy in the car,' to which remark appellant made answer according to three witnesses, 'I couldn't get him out, he claimed his leg was broken,' and appellant admitted, 'I might have' made such statement. When asked what he thought the lady would think about the wrecking of the car, appellant admitted it looked pretty bad to him the last time he saw it.

The coveralls which appellant wore when apprehended were identified by Mr. and Mrs. Berry as looking like or similar to the coveralls worn by one of the men, observed by them, taking slot machines from the Tetonia Club the early morning of December 29, 1952.

The deputy sheriff placed appellant's described location of the Plymouth car, as about three blocks from the place where the Pontiac station wagon came to a stop. Appellant asserts that the deputy found the Plymouth car at the place as appellant had described it to be; but the record shows only, that the deputy placed the locality, but not...