State v. Johnson
| Decision Date | 07 December 1978 |
| Docket Number | No. 12403,12403 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Arthur Roy JOHNSON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Richard H. Wendt, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., LeAnn Larson Finke, Asst. Atty. Gen., Pierre, on the brief.
John S. Theeler of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant; David Lee Rasmussen of Morgan, Fuller, Theeler & Cogley, Mitchell, on the brief.
Appellant was convicted by an Aurora County jury on a felony charge of third degree burglary. He was sentenced to serve ten years in prison. We affirm.
This appeal relates to a challenge of the sufficiency of the evidence to support the verdict when considering the law of the case as set forth in erroneous instructions to the jury by the trial court. The principal issue here decided relates to invited error.
On September 28, 1977, Randy Lee Newman and Timothy Clark Norris were apprehended during the course of a burglary at the Aurora Co-op Oil Company in Stickney, South Dakota. At the time of appellant's trial Newman and Norris had pled guilty to third degree burglary and were awaiting sentencing for their participation in the crime.
Newman and Norris testified, over timely objections and a motion in limine by defense counsel, to the effect that they has been contacted by appellant in Omaha, Nebraska, about going to South Dakota to get truck tires. On the day of the offense the three drove to Stickney from Omaha in appellant's vehicle where they cased the Aurora Co-op Oil Company and the surrounding area. They then traveled to Mitchell, South Dakota, where they rented a U-Haul truck which was to be used to transport the stolen tires. Then they returned to Stickney with appellant driving his vehicle and Newman and Norris driving the U-Haul truck. Upon arriving in Stickney they parked Appellant was later apprehended in his vehicle at the nearby town of Corsica. He had earlier been observed and followed out of Stickney by a patrolman who at the time had no information concerning appellant's involvement in the burglary.
the U-Haul truck by a service station which adjoined the oil company. Newman and Norris walked to the oil company and broke and entered it, opened the garage doors and then returned to the station where they got the truck and drove it into the oil company building. During this time appellant had driven his vehicle some distance from the scene and parked with the lights off. These occurrences had been observed by the operator of a motel near the oil company who reported the suspicious events to local law enforcement personnel who soon arrived and apprehended Newman and Norris inside the oil company building.
Other witnesses testified that appellant had been in Stickney some days before the burglary. He had spent three to four hours in the vicinity of the oil company and had stopped at the adjoining service station three to four times during the week.
The information under which appellant was charged alleges that he and Norris ". . . did willfully, unlawfully, feloniously and burglariously, in the night time, break and enter a building located in Aurora County, South Dakota, . . . with intent . . . to commit larceny . . . ."
Despite the provisions of SDCL 22-3-3, which abolished the common law distinction between aiders and abettors, defense counsel throughout these proceedings has mistakenly taken the position that an alleged aider and abettor in a crime must be charged as such, rather than as a principal. It is settled law that a conviction may be supported by proof that the defendant was an aider and abettor even though the charging instrument charges him as a principal. See State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973); State v. St. Pierre, 59 S.D. 169, 238 N.W. 875 (1931); and United States v. Leeper, 413 F.2d 123 (8th Cir. 1969).
During the course of settlement of instructions there seemed to be confusion among all counsel and the court concerning the instructions to be given regarding aiders and abettors and the corroboration of accomplice's testimony. It is clear that the court had prepared and proposed to give an instruction relating to the legal consequences of being an aider and abettor. * After a confusing colloquy between court and counsel, and because of defense counsel's objection to the...
To continue reading
Request your trial
-
State v. Iron Necklace
...we find that issue to be determined by long-standing case law. State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973); State v. Johnson 272 N.W.2d 304 (S.D.1978); United States v. Thomas, 469 F.2d 145, cert. denied 410 U.S. 957, 93 S.Ct. 1429, 35 L.Ed.2d 690 and 410 U.S. 957, 93 S.Ct. 1430, 35......
-
State v. Johnson
...and admit evidence convicting a defendant as an accessory where an indictment charges only conduct as a principal"); State v. Johnson, 272 N.W.2d 304, 305 (S.D. 1978) ("It is settled law that a conviction may be supported by proof that the defendant was an aider and abettor even though char......
-
State v. Miller
...raised aiding and abetting. Instructions below were in accordance with past precedent in this Court and our statutes. In State v. Johnson, 272 N.W.2d 304, 305 (S.D.1978), this Court held: "It is settled law that a conviction may be supported by proof that the defendant was an aider and abet......
-
State v. Wiegers
...giving the lesser included offense instructions it was error that was invited by defendant and thus not subject to appeal. State v. Johnson, 272 N.W.2d 304 (S.D.1978); State v. Parker, 263 N.W.2d 679 (S.D.1978). appeal. See, e.g., State v. White&nb......