State v. Keckonen

• Decision Date: 16 November 1938
• Docket Number: 7818.
• Citation: 84 P.2d 341,107 Mont. 253
• Parties: STATE v. KECKONEN.
• Court: Montana Supreme Court

84 P.2d 341

107 Mont. 253

STATE v. KECKONEN.

No. 7818.

Supreme Court of Montana

November 16, 1938

Appeal from Second Judicial District Court, Silver Bow County; T. E Downey, Judge.

Alexander Keckonen was convicted of the infamous crime against nature and from the judgment of conviction and an order denying a new trial, the defendant appeals.

Reversed and remanded for new trial.

MORRIS and STEWART, JJ., dissenting.

John B McClernan, of Butte, for appellant.

John K Claxton, of Butte, Carl N. Thompson, of Helena, Francis P. Kelly, of Butte, for the State.

GODDARD Chief Justice.

Alexander Keckonen was tried and convicted on an information charging him with a violation of Section 11030, Revised Codes, which defines the infamous crime against nature. The information also charged him with the prior conviction of a felony--robbery; on this charge, however, no proof was offered, since it was agreed between counsel that this prior conviction would be admitted. He was sentenced to 35 years in the state prison, and it is from that judgment and the order denying a new trial that this appeal is taken.

The only evidence adduced as to the actual commission of the offense is to be found in the testimony of the prosecuting witness, a boy between 16 and 17 years of age, a confessed accomplice in the case. His testimony was substantially as follows: He met defendant in the fall of 1936 near a hamburger shop in the city of Butte, Montana, at which time the latter asked him for something to eat. The boy accommodated, and the next day he met defendant again who thereupon asked him to go with him to his room. The boy accepted and once there, defendant made a proposal to him whereby he, the boy, was induced to become the passive partner in the commission of the crime against nature. The crime was committed in the usual way where two persons of the male sex attempt unnatural intercourse. Defendant's proposal was to pay the boy so much a week in return for his consent and assistance in the perpetration of the act. The boy accepted, and from then on the meetings had by the two for this purpose apparently became almost a daily occurrence for many months prior to the institution of this prosecution.

He testified that shortly after the inception of the criminal relationship, his parents changed their place of residence in Butte at least twice; and that defendant changed his as many times, and always to a vicinity close to where the boy's parents would move in order to be near him. For one period of time, he testified, defendant actually lived in the same building with his parents, they having a downstairs apartment, and defendant having quarters upstairs. His testimony further disclosed that during the latter part of July, 1937, his parents took a trip to the state of Washington at which time he went to live with defendant for two or three weeks, including the 17th of July, 1937, the date of the act charged in the information. The boy's mother testified that on taking this trip, the boy was left to live with his married sister in the city of Butte. On the above mentioned date at about midnight, two officers of the law in search of the boy who had been reported to the police as missing, discovered him asleep in defendant's room. When found, defendant and the boy were sleeping in separate beds. Both were taken into custody.

The boy's mother testified that she was acquainted with defendant and that she had met him shortly after he moved into the room above the family apartment. She saw him nearly every day, and soon observed that he was very friendly with her boy. As time went on, she thought it did not seem right the way defendant was hanging around her boy all the time. She testified: "They were together all of the time. When I say 'all the time' I mean almost daily. I wouldn't say daily, but more than what really looked right." The record does not disclose the actual disparity in the ages except that the boy was over 16 and defendant was a "man." She requested defendant to come to the house and at that time she asked him not to give her boy any more money or presents, and particularly a suit of clothes which he had bought and for which she offered to reimburse him. She told defendant that her husband (the boy's step-father) wished also to see him. In response to a question regarding the boy's physical condition, she testified that he was getting nervous and wouldn't eat. On cross examination, she testified that her boy did not associate with his former playmates after having made the acquaintance of defendant. She also testified that at a time subsequent to the conversation she had with defendant concerning the boy, she invited him to their home for Thanksgiving dinner just out of courtesy to the boy. On re-direct, she testified that on one occasion she observed defendant waiting at a street corner to meet her boy as he came from school.

The boy's step-father testified substantially that he had observed the friendliness that existed between defendant and the boy, and knew that they were associating together. He was asked whether he had had a conversation with defendant relative to his associations with his stepson, and in response he testified: "He came to my house and said we were accusing him with improper relations with the child and I told him it was a fact and didn't think things were right. He said, 'my relations with the boy are purely friendly and I don't mean anything only pure friendship with the boy,' and I said to him, if its pure friendship I hate to break it up as there is such little in the world I hate to be the means of breaking it up. He said it was pure friendship and he wanted to know if we wanted him away from the boy, and I said I did, and I said further, we want you to quit giving him clothes and money."

On cross-examination he testified: "After I had that conversation with Mr.

Keckonen about his relations with the boy it is true that I saw him with Alex (defendant) after that. I did not accuse Alex of improper relations with the boy after that because there was no use. On Thanksgiving day I went to Mr. Keckonen's apartment and asked him up for Thanksgiving dinner because the boy had asked for it, and he had dinner at our house on Thanksgiving day. After the time of the conversation with Keckonen he came to our home several times with the boy but not as an invited guest."

The county physician testified that he examined the rectum of the boy 48 hours after he had been incarcerated in the Juvenile Detention Room. The examination was made to determine whether there was any evidence that might indicate that a sodomitic relationship had occurred. In substance he testified that his examination revealed a relaxed condition of both the external and internal sphincter muscles. In part, his testimony was this: "In the ordinary individual we find the muscle is taut. That is, it's tight, so that in inserting a foreign body, a finger, there is a certain resistance and you must use considerable force, particularly in a conscious patient where the muscle is active. Now in this instance, the finger required very little force to force its way through both muscles."

The only other evidence offered by the state and admitted by the court was the testimony of the two arresting officers. Their combined testimony disclosed only the fact that they had found the boy and defendant together in the latter's room, sleeping in separate beds at midnight the night of the arrest.

At this point in the trial, counsel for defendant presented an alternative motion to the court requesting it to either dismiss defendant, direct a verdict of acquittal, or to advise the jury to acquit defendant. Five grounds were specified in support of the motion; the court, however, denied the motion in toto. With this, defendant rested his case without offering any evidence in his behalf.

The first five specifications of error present the determinative question in this appeal, which is whether or not the state has sufficiently corroborated the testimony of the accomplice in accordance with the requirements of Section 11988 Revised Codes. If not, the conviction cannot stand. The section provides as follows: "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, 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." This section was adopted from the California Penal Code, and of that section the California court said in a cause embodying facts somewhat similar to those in the present appeal: "It will thus be seen that the statute imperatively makes corroboration of the testimony of an accomplice an essential prerequisite to the conviction of a defendant where the crime charged rests primarily and solely upon the testimony of an accomplice; and it is apparent, therefore, that the court has no control over the subject except to apply the statute. The court has no discretion in the matter, but is bound to apply the statute indiscriminately to all cases wherever an accomplice appears as a witness, and the state's case depends solely upon his uncorroborated testimony." People v. Robbins, 171 Cal. 466, 154 P. 317, 318.

The dictates of the above quotation apply equally as well to us as they do to the California courts, and the boundaries of our review are clearly marked. In this jurisdiction, the question of corroborating an accomplice's testimony has often been before the court. The pronouncements on the subject have been ably crystalized and reviewed in the case of State v. Jones, 95 Mont. 317, 26 P.2d...