State v. Simpson
| Decision Date | 26 October 1951 |
| Docket Number | No. 7715,7715 |
| Citation | 120 Utah 596,236 P.2d 1077 |
| Parties | STATE, v. SIMPSON. |
| Court | Utah Supreme Court |
D. H. Oliver, Salt Lake City, for appellant.
Clinton D. Vernon, Atty. Gen., Bryce E. Roe, Deputy Atty. Gen., Francis C. Lund, Dep. Atty. Gen., Brigham E. Roberts, Dist. Atty., Wayne L. Black, Ass't. Dist. Atty., Salt Lake City, for respondent.
Defendant appeals from a conviction of second degree burglary. His contentions for reversal are:
(1) That there was not sufficient corroboration of the testimony of his accomplice, Paul Perkins.
(2) That the court erroneously admitted in evidence a conversation between another accomplice, James Nixon, and one Henry Oliver, a witness for the State, and
(3) Refusal to instruct the jury that the testimony of an accomplice should be viewed with caution.
The defendant does not prevail on any of the foregoing assertions and the conviction is affirmed.
The story as told by the co-defendant and accomplice Paul Perkins was that he, McKinley Simpson, Robert Clewes and James Nixon went to the Brewer Tire Company at about 10:30 Sunday evening, January 28th; that he and Simpson gained entrance to the building and removed 10 tires and brought them to the car in which the other men waited. They then went to Pete Migliaccio's Tavern and sought to sell the tires to him, but he refused to buy them because he suspected something might be wrong. They picked up Vernon Skinner, took the tires to the home of Perkins' aunt and stored them, dropped Nixon off, and then went back to Brewers. Perkins and Simpson again entered the building, lined up more tires to take, and were looking for a television set when they were frightened off by the arrival of the police. They left the premises by the rear door and went back of some houses then out onto the street and north thereon to the corner and then into an alley and out again and finally hid in a doorway of the Utah Apartments where they were apprehended.
The statute relied on by defendant in urging his first point is Sec. 105-32-18, U.C.A.1943: 'A conviction shall not 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 shall not be sufficient, if it merely shows the commission of the offense or the circumstances thereof.' In the case of State v. Erwin, 101 Utah 365, 120 P.2d 285, 299, Mr. Justice Wade for this court, speaking of that statute, stated:
'This court has held this corroboration need not go to all the material facts testified to by the accomplice (State v. Stewart, 57 Utah 224, 193 P. 855); that the corroborative evidence need not be sufficient in itself to support a conviction; it may be slight and entitled to little consideration. People v. Lee, 2 Utah 441; State v. Spencer, 15 Utah 149, 49 P. 302. * * * 'On the other hand, the corroborating evidence must implicate the defendant in the offense and be consistent with his guilt and inconsistent with his innocence, and must do more than cast a grave suspicion on him, and all of this must be without the aid of the testimony of the accomplice. * * *'
See also State v. Brunner, 106 Utah 49, 145 P.2d 302.
It is necessary to examine the evidence independently of the testimony of Perkins to see whether it meets the requirement of the above statute. This evidence shows that in the early morning hours of January 29, 1951, about 2:10 a. m., the police were summoned by special officers Haskell and Jack Merrick to the Brewer Tire Company, located at 170 West on First South Street, to investigate suspicious circumstances at that address. It had been and was snowing, and two sets of footprints could be seen going toward the rear of the building and also leading away from the rear door of the building. Eliminating the detail by which it was accomplished, it appears that Officer Wilbur Anderson and Special Officer Jack Merrick by following these tracks in the snow sighted these two men on the street; saw them go into an alley in the neighborhood; then observed one of them run and disappear near the front of the Utah Apartment house; Jack Merrick then ran there and caught the two men, who turned out to be the defendant and Paul Perkins, hiding in the doorway. Simpson does not deny that he was on the corner with Perkins, nor that he ran and hid with him. His explanation that he was out of bed because his clock was faulty and he thought it was 4:20 a. m. and time for him to go to work, and that he saw Perkins on the corner and went up to join him just as the police came, seems highly improbable in view of the evidence and his actions just following their being seen on the corner together.
Flight and concealment immediately following the commission of a crime are both elements which may be considered as evidence of implication in that crime. See State v. Marasco, 81 Utah 325, 17 P.2d 919; and Annotation 87 A.L.R. 767.
Other evidence exists which also ties this defendant to the burglary. On Sunday evening, before the burglary, between 7:00 and 8:00 o'clock, the defendant went alone to Pete Migliaccio, the tavern keeper, and asked if he would be interested in buying some tires. At about 11:30 the same evening, apparently after the first entry into the Brewer Tire Company, he returned to the back door of Migliaccio's Tavern and said: 'I've got the tires.' On this occasion there were other persons in the car with defendant but he was the one who talked to Migliaccio about the tires, the latter refusing to buy them.
About two and one-half hours later, that is at about 2:00 o'clock Monday morning, the defendant accompanied by the codefendants, James Nixon and Robert Clewes, sought to sell tires to one Henry Oliver (who will be referred to later) who also refused to buy the tires at that time. The next morning about 10:00 a. m. Nixon did sell some tires to Oliver. These tires were identified by Mr. Brewer as having been stolen from his store. Other tires were also recovered from the home of Perkins' aunt and identified by Mr. Brewer as his tires.
These attempts by the defendant to sell the tires, one of them with Nixon, who later sold the stolen tires add to the evidence tending to connect defendant with the crime. We conclude that there was ample evidence to corroborate the testimony of Perkins to meet the requirements of the statute hereinabove quoted and to render a conviction based on the evidence proper.
The conversation objected to under defendant's second point above, is one testified to by Henry Oliver. He said that Nixon came around...
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