State v. Phillips

• Decision Date: 03 February 1904
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. W. F. PHILLIPS, Defendant and appellant.
• Court: South Dakota Supreme Court

18 S.D. 1

98 N.W. 171

STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

W. F. PHILLIPS, Defendant and appellant. Error to Circuit Court, Lyman County, SD Hon. Frank B. Smith, Judge Affirmed B. C. Huddle, I. N. Auld, and Horner & Stewart Attorneys for plaintiff in error. Philo Hall, Atty. Gen. Attorneyfor the State. Opinion filed Feb. 3, 1904

CORSON, P. J.

Upon an information filed by the state’s attorney, the plaintiff in error was tried and convicted in the circuit court of Lyman county of the crime of grand larceny. The subject of the larceny was a young horse, between two and three years of age, valued at $30. The plaintiff in error, whom we shall hereafter denominate “defendant,” claims a reversal of the judgment of the trial court upon two grounds: (1) Insufficiency of the evidence to justify the verdict of the jury; and (2) error of the court in denying a continuance.

The principal witness on the part of the state to prove the defendant’s connection with the larceny charged was one Fred Seymoure. The testimony of Seymoure is quite fully stated by the defendant’s counsel, and, as it is conceded to be correct by counsel for the state, we will adopt the statement, which is as follows:

“Fred Seymoure, a witness for the state, testified upon the trial that he had formerly lived in Douglas county, and had come to Lyman county two years ago last fall; that he was twenty-four years old; that he had gone to work for the defendant, Mr. Phillips, on the 17th day of September, 1902; that he was to help run the defendant’s cattle, and was to work at the defendant’s hay camp on the reservation, about eighty miles from Oacoma; that on a couple of different occasions the defendant had something to say about taking horses off the range; that the defendant had told him that he would like to have him take a claim for him, and said that RI fellow could get a horse off the range once in a while that would pay expenses; that he was at Phillips’ ranch a short time before election in November, 1902, and that he and the defendant were eating breakfast at the ranch when Clyde Lewis and Albert Lee, two men working for the defendant at that place, brought some horses into the corral at the defendant’s ranch, among them being the horse in controversy and another horse, a stallion; that the defendant told him to take these two horses down to the hay camp on the reservation, and that he did so; that he tied the two horses together and took them to the hay camp; that, at the time he took this horse in controversy to the hay camp, he knew it did not belong to the defendant, Phillips; that Phillips came out to the hay camp just before election day; that the defendant asked him to take this horse in controversy down into Douglas county with him, to sell; that he took this horse in controversy along with him, although he knew it was not Phillips’ horse, and traded it off at a place about six miles northeast of Geddes; that the defendant wanted $25 for the horse, and that he (the witness) offered to give the defendant $25, or a two year old heifer worth $25, for the horse in controversy; that the defendant accepted this proposition, and, at the time he (the witness) started, the defendant had sold and transferred the horse to him; that he never paid the defendant anything for the horse; that he had never asked any wages from the defendant, and that he expected to get his money out of this horse; that the defendant had talked to him about taking horses off the range and disposing of them, and told him, if he (the witness) would get them; that he (the defendant) had a way of getting rid of them; that when the horse was taken by him from the ranch down to the camp on the reservation, it was turned loose with other horses out on the range; that when he returned from Douglas county the defendant told him that one Valentine had said he knew where the horses were, and that he (the witness) had stolen them; that the defendant said the best thing for the witness to do was to stand pat and make them prove it. and said, if the witness squealed on him, he (the witness) would never squeal on another man.”

The ownership, value and identity of the horse stolen was proven by other witnesses. The only evidence tending to connect the defendant with the larceny, in addition to the testimony of Seymoure, was that of one Bert Carpenter, which is, in substance, as follows:

“Bert Carpenter, witness for the state, testified that he was at the hay camp of the defendant, W. F. Phillips, at one time during the last year before the trial; that he saw a horse out there that had a reverse C on the left shoulder, and that he did not notice at the time whether there was a circle bar on him or not; that on the day of the trial, in the livery barn in town, he had seen another brand on the horse than the C, and that it was the same horse that he had seen out there with the C on it; that he had heard the defendant ask Seymoure if he got down there with the horses all right; that Seymoure prior to that time had come down there with two horses, and the defendant told Seymoure that he had better watch them, or they would go back; that he had been placed under arrest about the time the preliminary examination of the defendant was held, and was put under bonds to appear before the circuit court; that he had been kept in jail three or four weeks, maybe five, and at the end of that time he was dismissed, without bail. under the condition of testifying against the defendant in this action.”

It is contended by the defendant that Fred Seymoure is shown by the undisputed evidence to have been an accomplice, and that his evidence was not corroborated in the manner prescribed by the Code. It is insisted on the part of the state, however, that Seymoure was not an accomplice, but, at most, an accessory after the fact; that the property had in fact been stolen, and was in the possession of the defendant, before Seymoure had any connection with the transaction. We are inclined to agree with the state on this contention. So far as the evidence discloses, the first connection of Seymoure with the stolen property was at the time he took the horses, at the request of the defendant, from the corral on his home ranch to the hay camp. The horse in controversy, it will be noticed from the testimony of Seymoure, was driven into the corral by two employes of the defendant. An accomplice is not defined by our Code, and hence we must take the common-law authorities for a definition. Mr. Wharton, in his work on Criminal Evidence, thus defines an accomplice: “One who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime.” Wharton’s Crim. Ev. 440. In People v. Smith, 28 Hun. 626, an accomplice is defined to be “a person involved, either directly or indirectly, in the commission of a crime. To render him such he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction.” In Jones on Evidence, § 786, an accomplice is defined to be one who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of a crime. In 3 Rice on Criminal Evidence, § 318, an accomplice is defined as “a person involved, either directly or indirectly, in the commission of a crime. To render him such, he must in some manner aid or assist or...