State v. Murphy

• Decision Date: 18 July 1972
• Docket Number: No. 10827,10827
• Citation: 499 P.2d 548,94 Idaho 849
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Frank MURPHY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 548

499 P.2d 548

94 Idaho 849

STATE of Idaho, Plaintiff-Respondent, v. Frank MURPHY, Defendant-Appellant.

No. 10827.

Supreme Court of Idaho.

July 18, 1972.

Greene & Hunt, Sandpoint, for defendant-appellant.

W. Anthony Park, Atty. Gen., John Hancock, Asst. Atty. Gen., Boise, Everett D. Hofmeister, Jr., Sandpoint, for plaintiff-respondent.

DONALDSON, Justice.

Upon appeal from a lower court determination of guilt, the defendant-appellant Frank Murphy was tried de novo in district court for the crime of selling beer to a minor. A jury of six persons returned a verdict of guilty, and the district court fined the appellant $300.00 and sentenced him to twenty days in the county jail. This appeal is taken from the judgment of conviction entered by the district court.

The criminal complaint filed against the appellant charges him with 'selling beer to a minor person' and indicates a violation of I.C. § 23-1023, which in pertinent part reads as follows:

'Beer-Procuring for or selling to person under twenty years of age a misdemeanor.-Any person who shall procure beer for any person under twenty (20) years of age or any person under twenty (20) years of age who shall purchase, attempt to purchase or otherwise procure, consume or possess beer, shall be guilty of a misdemeanor.'

The complaint alleges that the offense took place at a retail premises operated by the appellant. At the trial in district court, the state's only evidence consisted of the testimony of two minors; one of them stated that the appellant had sold beer to him, and the other testified that he was waiting outside when the purchase was made and saw his colleague leave the premises with a case of beer. These minors, who had jointly planned the illicit purchase, were promised that if they testified at trial, they would not be prosecuted for any liquor violation they may have committed by purchasing, consuming, or possessing the proscribed beverage.

After the state rested its case, the defendant moved for dismissal or in the alternative for an advisory instruction to acquit, upon two grounds: First, the defendant contended that he was charged with violating I.C. § 23-1023, the statutory provision against procuring and purchasing, and not with violating I.C. § 23-1013, ¹ which covers selling, serving, or dispensing beer to a minor; and, he contended, there was no evidence before the court to show that the defendant had procured or purchased beer in violation of I.C. § 23-1023. Second, the defendant submitted that the only evidence presented by the prosecution consisted of the uncorroborated testimony of accomplices, upon which a conviction cannot be had under I.C. § 19-2117. ² The trial court denied the defendant's motion for dismissal or for an advisory instruction to acquit. On appeal, the defendant abandons the first ground and contends only that the two state witnesses who testified against him at the trial were accomplices within the meaning of I.C. § 19-2117. ³

The appellant's contention must be rejected. The same argument has, without success, been made previously in cases involving other crimes. For example, it has been held that a woman who submits to an abortion is not an accomplice of the perpetrator of the crime. State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954); State v. Proud, 74 Idaho 429, 262 P.2d 1016 (1953). Similarly, this Court has ruled that '(t)he bribe giver is not an accomplice with the bribe taker; each is guilty of a distinct and separate offense.' State v. Emory, 55 Idaho 649, 656, 46 P.2d 67, 70 (1935). Likewise, under a statute substantially identical to I.C. § 19-2117, the Supreme Court of Arizona has held that a briber is not an accomplice of a bribee, even though they are both punishable under the provisions of the same statutory section. State v. Martin, 74 Ariz. 145, 245 P.2d 411, 414-415 (1952). In the case at bar, two separate crimes were committed when the illicit transaction was consummated: the appellant committed the crime of selling beer to a minor; and the minor purchaser committed the separate crime of purchasing beer.

The appellant mistakenly relies upon the following statement from the dissenting opinion in Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963): 'Where the statute does not make buying illegal, the buyer is not a party to the offense of the seller.' Id. at 298, 379 P.2d at 421. The appellant's position is that the converse must also be true-that is, where buying is made illegal, the buyer is a party to the offense of the seller. Actually, however, the authorities cited in Howard to support the above-quoted statement stand for the quite different proposition that where buying is not made a crime, the buyer cannot be convicted as an aider and abettor of the seller's crime. These cases simply reflect the notion that conduct which the legislature has chosen not to make a crime should not be made criminal through judicial construction. Where, as in this case, buying is made illegal, then, of course, the buyer may be convicted for directly committing the act constituting the offense; and he is not, in such a case, any more 'a party to the offense of the seller' than he is where buying is not made illegal. Hence, the appellant's contention cannot be sustained.

As we have recently pointed out, the testimony of an accomplice is generally 'so corrupt as to render it unworthy of belief.' State v. Emmons, 94 Idaho 605, 495 P.2d 11, 15 (1972). The dissent notes that the testimony of the witnesses who testified in this case was also untrustworthy. However, although the testimony of an accomplice is, according to the legislature, untrustworthy, this does not mean that any time a witness's testimony is untrustworthy, he must be deemed an 'accomplice.' Thus, it has been held that an accessory after the fact is not an accomplice within the meaning of the statute requiring corroboration of his testimony, even though 'the evidence discloses that this witness was himself deep in the mire.' State v. Gilbert, 65 Idaho 210, 215, 142 P.2d 584, 586 (1943); accord, State v. Rackley, 106 Ariz. 424, 477 P.2d 255 (1970). We also note that one who is subject to prosecution as an accessory after the fact has the same sort of incentive to cooperate with the prosecutor as did the witnesses in the case at bar. In neither case, though, may the witnesses properly be classified as accomplices; and whether or not it was wise policy to do so, the restrictive provisions of I.C. § 19-2117 are made applicable only to 'accomplices.' The legislature did not, for example, choose to apply these provisions to 'those involved in the same transaction,' or 'those who are at the time subject to prosecution for another offense,' or 'those whose testimony is for some reason untrustworthy.'

Judgment affirmed.

McQUADE, C. J., and SHEPARD, J., concur.

McFADDEN, Justice (dissenting).

Although I concur in that portion of the majority opinion discussing the statute under which this prosecution should have been brought, I dissent with its ultimate conclusion.

The defendant in this action was tried and found guilty under the provisions of I.C. § 23-1023, which prohibits the procuring of beer for any person under twenty years of age and also prohibits the purchasing, attempting to purchase, procuring, consuming, or possessing of beer by a person under twenty years of age. In other words, both the defendant as well as the minor witnesses were subject to prosecution under this statute. However, only the defendant was charged.

Although the defendant claims the minors were accomplices to the sale of beer, the majority disagrees and states that there are two distinct crimes involved. As a result of the separate crime distinction employed by the majority, the defendant is unable to disqualify the uncorroborated testimony of the minors. In support of their conclusion the majority cite four cases which are clearly distinguishable from the facts and the law applicable to the case at bar. A clear, recognizable principle emerges from the opinions of the Court in State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935), State v. Proud, 74 Idaho 429, 262 P.2d 1016 (1953), State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954), and State v. Gilbert, 65 Idaho 210, 142 P.2d 584 (1943), that if a statutory offense involves a transaction between two persons or groups of persons and provides separate and distinct penalties for those engaging on each side of the transaction, those on the other side cannot be considered as accomplices since their omission from the statute evinces a legislative purpose for them to be left out. Consequently, these cases simply state that when parties privy to an offense are culpable under a separate statute and offer testimony adverse to the principal, corroboration is not required. Conversely, when the parties are culpable under the same statute, such parties are accomplices and corroboration is a necessity.

'The victim of the abortion could be prosecuted under section 18-602, I.C., while both the accused and the accomplice, but not the victim, could be prosecuted under section 18-601, I.C.; hence the victim is not an accomplice.' State v. Proud, supra, 74 Idaho at 434-435, 262 P.2d at 1019; see, State v. Emory, supra 55 Idaho at 656, 46 P.2d at 70. (Emphasis supplied.)

Had the defendant been properly charged under I.C. § 23-1013, the minors would not have been accomplices since they were chargeable for violating I.C. § 23-1023. Since this Court has recognized the legislature's intent of designating parties subject to the same penal statute as accomplices, I would not depart from that well established principle in this case wehere I.C. § 23-1023 expressly declares that minors who purchase beer and the procurer of such beer are guilty of the same offense.

In my opinion the minor witnesses are accomplices within the purview of I.C. § 23-1023, under which the defendant stands convicted. The testimony of the minor witnesses was...