State v. McCreary
| Decision Date | 05 May 1966 |
| Docket Number | No. 10191,10191 |
| Citation | 82 S.D. 111,142 N.W.2d 240 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. George Donald McCREARY, Malcolm Morrison and Jeanine Morrison, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Martens, Goldsmith, May & Porter, Pierre, Kerrigan, Line & Martin, Fremont, Neb., for defendants and appellants.
Frank L. Farrar, Atty. Gen., Frances Biegelmeier, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
The defendants, George Donald McCreary and Malcolm Morrison and his wife, Jeanine Morrison, were charged jointly and convicted of the crime of burglary in the third degree. Each was sentenced to a term of six years in the State Penitentiary.
Upon this appeal the defendants urge as grounds for reversal of the judgments the insufficiency of the evidence to support the judgments, admission in evidence of a .38 caliber pistol with serial numbers obliterated which admittedly was not used in commission of the offense charged, reception in evidence of various articles taken from the automobile occupied by the defendants after their arrest and, as defendants claim, not incidental to arrest, and reception of other articles taken in a search of the automobile under a search warrant claimed to have been obtained on an affidavit insufficient because not showing probable cause for the search.
On the winter afternoon of February 3, 1964, at about 4:30 p.m. the defendants in a Chevrolet automobile rented in Denver by defendant, Malcolm Morrison, stopped in front of a laundromat in Sisseton, the county seat of Roberts County in the extreme northeast of South Dakota. While Mrs. Morrison remained in the automobile parked in front the two men entered the laundromat and went directly to the pay telephone in a corner of the laundromat. With the attendant standing some fifteen feet away the men in turn went through the motions of placing telephone calls which were not completed. Morrison appeared to be tinkering with the key hole of the coin box at lower part of the telephone. McCreary picked up a newspaper and stood between Morrison and the attendant with the paper so held that she could not see Morrison at the telephone, shifting the paper as she moved to look. She suspected that they were looting the coin box and as they left after being in the building about ten minutes she wrote down the license number of the Chevrolet and called the telephone company to ask that the telephone be inspected. When she put a dime in to make the call, it sounded as if the coin dropped into an open space. Upon inspection by the repairman a short time later, he found the coin box gone. A dime was in the empty compartment.
Pursuant to a radio message the Sheriff of Marshall County, which adjoins Roberts County on the west, at about 5:45 p.m. stopped the Chevrolet answering the description broadcast to him. This was at a point about two miles east of Britton on Highway 10 and about thirty-six miles from Sisseton. McCreary was driving at the time with Morrison seated next to him and Mrs. Morrison in the rear seat.
In response to a radio message the Sheriff of Roberts County and his Deputy Johnson, arrived at the point on Highway 10 where the Chevrolet was stopped and the party had waited for about 30 minutes. They made a cursory search of the persons of the defendants presumably for weapons and placed them under arrest. The Chevrolet and the officers' cars were on the highway at the edge of an open field. The wind was causing the snow to drift. It was a typically cold winter evening in northern South Dakota. The defendants were not dressed for the weather conditions. Members of the party remaining out of the cars for a short time became unconfortably cold.
With McCreary handcuffed in the back seat and Mrs. Morrison in the front seat the sheriff drove his car to his office in Sisseton. His deputy took Morrison in the Chevrolet and parked it outside the sheriff's office. The defendants were taken inside and a more thorough search made of their persons. A telephone company key was found in Morrison's billfold of a type used in coin telephones in cities where the upper housing must be opened in order to take the coin box out. Before he was lodged in jail Morrison was allowed by the sheriff to go to his car for cigarettes. As he opened the front door and the light went on the sheriff saw a bag in the front which he took out. It contained nickels, dimes and quarters in total amount of $78.25 and was received in evidence at the trial.
Immediately after the defendants were searched and placed in jail the deputy sheriff searched the Chevrolet car which had been outside the sheriff's office under the control and observation of the officers at all times while booking, searching and placing the defendants in jail. In a suitcase in the trunk of the car was found a bag of rolled coins amounting to about $135.00. Also under the front seat of the car partially covered by a floor mat was a .38 caliber pistol loaded with four cartridges.
On the day following the arrests in course of a search of the highway and ditches in the Sisseton area the deputy sheriff found the coin box from the pay telephone of the laundromat in a ditch along Highway 10 about one-fourth mile east of Sisseton.
On February 5th search was made of the Chevrolet car by the sheriff under a search warrant. He found cutting pliers, a file, coin wrappers and pieces of wire. On the same day he found in his own car which had been used to convey McCreary and Mrs. Morrison, two wire hooks or picks, one under a rubber mat in front and the other between the seats. At the trial a security officer of the telephone company demonstrated how these wire hooks could be used in unlocking and relocking the lock on the pay telephone. There was testimony by an expert that tool marks inside the lock could not have been made by the key, but could have been made by the wire hooks used as picks.
As to the defendants McCreary and Morrison the facts and circumstances shown tending to connect them with the offense charged are consistent with guilt and cannot be reasonable explained upon any theory consistent with innocence. But the circumstantial evidence against Mrs. Morrison does not exclude the reasonable hypothesis of innocence of the crime charged or that she was an accessory after the fact rather than an accomplice. As restated by this court recently, 'The established rule in this state is that to warrant conviction upon circumstantial evidence alone, such facts and circumstances must be shown as are consistent with each other and with guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent.' State v. Thomas, 78 S.D. 568, 105 N.W.2d 549.
In this state the distinction between a principal and an accessory before the fact in the commission of a crime has been abolished by statute. One who aids or abets in the commission of a crime, though not present, is a principal. SDC 13.0203. Mrs. Morrison was a passenger in the automobile rented by her husband which was driven by him or the defendant, McCreary, and stopped in front of the laundromat on the street in Sisseton at 4:30 p.m. Because of the manner in which the offense was committed there was no need for a lookout. She at no time operated the automobile. She did not sit behind the wheel. There is no evidence that she aided or abetted in the commission of the crime in the laundromat. At most the circumstantial evidence as to wire pieces or hooks found in the sheriff's car, the wire pieces found in the suitcase used by her husband and herself, and her connection with the coin wrappers tend to show she was an accessory after the fact rather than an accomplice. 'All persons who, after the commission of any felony, conceal or aid the offender with knowledge that he has committed a felony and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.' SDC 13.0203.
The distinction between an accomplice and an accessory was most recently stated by this court in the case of State v. Johnson, S.D., 139 N.W.2d 232 at page 236 as follows:
The evidence is insufficient to support the judgment against the defendant, Jeanine Morrison.
The trial court over objections of the defendants admitted in evidence the .38 caliber pistol which was found by the deputy sheriff under the front seat of the Chevrolet automobile used by the defendants. The four cartridges which were in the gun when found were also received in evidence. A Special Agent for the Federal Bureau of Investigation was allowed to testify that upon examination of the gun at the Bureau laboratory it was found that the serial numbers of the weapon had been removed or obliterated. This was evidence tending to show the defendants guilty of a crime other than that of the crime charged. U.S.C.A. Title 15, § 902(i) makes it unlawful for any person to...
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