State v. Peck, 10353

• Decision Date: 17 May 1967
• Docket Number: No. 10353,10353
• Citation: 82 S.D. 561,150 N.W.2d 725
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. William PECK, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 725

150 N.W.2d 725

82 S.D. 561

STATE of South Dakota, Plaintiff and Respondent, v. William PECK, Defendant and Appellant.

No. 10353.

Supreme Court of South Dakota.

May 17, 1967.

Samuel W. Crabb, Rapid City, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, David F. Sieler, State's Atty., Rapid City, for plaintiff and respondent.

HOMEYER, Presiding Judge.

The defendant, William Peck, was convicted in the Circuit Court of Pennington County of the crime of burglary in the third degree in breaking or entering the automobile of Arthur Maron with intent to commit larceny. ¹ He was sentenced to a term of two years and nine months in the state penitentiary and he appeals from the judgment and sentence.

The evidence of the state shows that Arthur Maron went to work at Gifford Electric at approximately 6:30 p.m. on December 27, 1965. He parked his automobile, a 1958 Pontiac 4 door sedan, in front of the place of his employment located on the corner of 11th Street and Kno Place at Rapid City. All doors of the vehicle were locked except the left front door. There were some articles in the glove compartment and a black nylon jacket in the back seat.

Shortly before 9 p.m. Maron heard a doorknob rattle and by looking through a glass door he observed two men in his car. The front door on the passenger side was open. One of the men was leaning against the front seat looking into the glove compartment. Maron later identified this man as DeWayne Fire Thunder. The other man, the defendant, had his head in the window or door and was watching him. The area was illuminated by lights over doors leading into the Gifford building and by the dome light in Maron's car.

Maron rushed out of the building and the two intruders fled with Maron in pursuit. He got within three or four feet of the defendant, but could not catch him. The chase continued for about a half block--the defendant going in a northwesterly direction and Fire Thunder in a northerly direction. Maron then returned to the Gifford building and telephoned the police station. He also examined his automobile. The front door on the passenger side was still open. The vent window on that side had been broken. The glove box was open and the contents were scattered on the floorboard. The black nylon jacket was missing from the back seat.

Two police officers arrived at the scene in a patrol car in about five minutes. Shortly afterward they were informed by police radio that another police patrol had apprehended two men nearby. The policemen and Maron then drove to this place which was in an alley about 2 1/2 blocks away and Maron identified the two men as the persons who had been in his car, one of whom, Fire Thunder, was wearing his black nylon jacket.

The police officers who apprehended the defendant and his companion testified that they were cruising the area in a patrol car and one of them saw the defendant drop a coat behind a tree. He also saw Fire Thunder close by. He got out of the patrol car and asked for identification and also picked up the coat. It was a woman's coat. Maron identified the coat as similar to one the defendant was wearing when he saw him in the car and while chasing him.

The defendant did not testify. Neither did Fire Thunder. The sole witness for the defendant was Marie Hanson who lived near where the defendant was apprehended. She testified that the defendant, Fire Thunder, and a third man whom she did not know, were at her home at about 4:00 o'clock that afternoon and were drinking wine. They stayed about a half hour. They came back again at about 5:30 p.m., and consumed another bottle of wine. She identified the female coat which the defendant discarded as her coat. The last time she saw it was the night of December 27th when the defendant was at her home. ² She said the defendant 'wanted to borrow a coat, my son's jacket, but he wasn't home so I loaned him my coat.' It was cold. At the time Fire Thunder was wearing a striped jacket. Mrs. Hanson did not report to the police that her coat was missing and said she figured he was going to bring it back.

Defendant contends the trial court erred in failing to direct a verdict of acquittal for the reason that the evidence is wholly insufficient to show (1) that the defendant participated in the crime; that is, it fails to show either a breaking or entering by the defendant, or if there is a breaking or entering by him, that it was done with an intent to commit larceny; and (2) that the defendant aided, abetted or assisted another in the commission of the crime of third degree burglary.

There is no merit in either contention. In this state, entering is sufficient to sustain a burglary conviction without a breaking. SDC 1960 Supp. 13.3703(2) as amended. Commenting on the statute, this court in State v. Vierck, 23 S.D. 166, 120 N.W. 1098, said: 'It will be observed that this section does not require a 'breaking,' but 'entering' alone is sufficient to constitute the crime, and, though the information charges both breaking and entering, the crime would be complete whether the entry was accomplished by means of force or without it.' See Annotation 23 A.L.R. 288.

Maron positively identified the defendant as being within the car. It was not necessary for him to be completely therein. The entry of any part of his body was sufficient. 12 C.J.S. Burglary § 10b; 2 Wharton, Criminal Law, 12th Ed., § 969, p. 1273.

On cross examination the defendant sought to discredit the testimony of Maron by showing a variance between what he said at the preliminary hearing and his testimony on direct examination at the trial. The claimed discrepancy involved whether Maron saw the defendant, or any part of him, in the automobile. He argues that Maron's testimony is contradictory and because under the circumstances a limited opportunity for observation existed, he contends the state has not met the burden of proving defendant's guilt beyond a reasonable doubt.

We have reviewed the record with care and are satisfied that the evidence produced by the state was sufficient to make out a prima facie case from which the jury could reasonably find the defendant guilty of the crime charged. State v. Nelson, 80 S.D. 574, 129 N.W.2d 54. The credibility of the witnesses and the weight to be given their testimony were matters for the jury. State v. Burtts, 81 S.D. 150, 132 N.W.2d 209; State v. Bates, 76 S.D. 23, 71 N.W.2d 641.

The contention the evidence is insufficient to establish beyond a reasonable doubt that the entry was with intent to commit larceny is not sustainable. The only evidence which would prove conclusively and beyond doubt the existence of an intent to commit larceny would be the statement or confession of the defendant himself. Admittedly there is nothing in the record to directly establish that the defendant intended to steal anything from the automobile or that the defendant knew that Fire Thunder intended to steal. But such intention or knowledge of such intention need not be directly or positively proved and it may be inferred from the circumstances. 12 C.J.S. Burglary § 55.

Mere presence alone of the accused at the scene of a crime is not sufficient to make him a participant, but his presence is a...