State v. Smith

• Decision Date: 02 August 1911
• Docket Number: 1,916.
• Citation: 117 P. 19,33 Nev. 438
• Parties: STATE v. SMITH.
• Court: Nevada Supreme Court

117 P. 19

33 Nev. 438

STATE v. SMITH.

No. 1,916.

Supreme Court of Nevada

August 2, 1911

Appeal from District Court, Esmeraldo County; Peter J. Somers Judge.

M. J Smith was convicted of grand larceny, and, from the judgment of conviction and an order denying a motion for a new trial he appeals. Affirmed.

Thompson Morehouse & Thompson and R. L. Hubbard, for appellant.

R. C. Stoddard, Atty. Gen., for the State.

TALBOT J.

The appellant was convicted of the crime of grand larceny and sentenced to the state prison for the term of three years. From the judgment of conviction and from an order denying his motion for a new trial, he has appealed.

He was jointly indicted with three others, Bart Knight, J. Hildebrandt, and Martin Miller, for the stealing of gold amalgam of the value of $400, the property of the Goldfield Consolidated Milling & Transportation Company, on the 30th day of January, 1910, or thereabouts. The defendant Martin Miller was dismissed from the indictment and made a witness for the state, under the provisions of section 361 of the criminal practice act (Compiled Laws, § 4326).

The defendant M. J. Smith, appellant herein, was granted a separate trial. While he was indicted as a principal, he was proceeded against under the provisions of Compiled Laws, section 4665, upon the theory that he was an accessory before the fact. The same situation existed, so far as the other two defendants, Knight and Hildebrandt, were concerned. It was the theory of the state that a conspiracy had been entered into between Smith, Knight, Hildebrandt, and Miller to steal gold amalgam from the mill of the Goldfield Consolidated Milling & Transportation Company; the actual theft to be committed by Martin Miller. On the evening of the 13th of February, 1910, Miller was arrested in the act of taking amalgam from the plates of the mill, by one Clarence A. Sage, a deputy sheriff of Esmeralda county and special officer for the Goldfield Consolidated Milling & Transportation Company. After the arrest of Miller, he was taken to the office of the attorneys of the company, where he made a confession of his participation in the act upon which the indictment was based.

The evidence of the conspiracy which the state sought to establish, and which it is contended upon the part of the state was established, was in substance as follows: The defendant Smith, who was an assayer in the town of Goldfield, approached Martin Miller, who was in the employ of the Goldfield Consolidated Milling & Transportation Company as an amalgamator, with the suggestion that he obtain gold amalgam from the mill. Miller informed Smith that he could not do this, because of the fact that he was under the surveillance of a watchman. Smith then informed Miller that he would arrange to have the watchman "fixed." Subsequently Smith informed Miller that he had "fixed" the watchman through the agency of the defendant Jake Hildebrandt, and that Miller would know that it was safe for him to proceed to take the amalgam when the watchman, W. M. Zimmerman, would say to him, "All right." The proof of the conspiracy to commit the crime charged in the indictment rested mainly upon the testimony of the defendant Miller and Zimmerman. The defendants Knight and Hildehrandt did not testify; but statements made by them were received in evidence, over the objection of counsel for the defendant, upon the theory that they were co-conspirators.

It has been strongly urged upon the part of the appellant that there was no corroboration of the testimony of the defendant Miller, and hence, under the statute (Comp. Laws, § 4330), there was no sufficient proof of the crime charged as against the defendant Smith. It is contended upon the part of the state that there was sufficient corroboration of the testimony of Miller by reason of the testimony of the witness Zimmerman, who detailed a conversation had with the defendant Smith in which, according to the testimony of Zimmerman, Smith admitted his criminal relations with the defendant Miller. It has been seriously urged upon the part of counsel for the appellant that Zimmerman himself was an accomplice, and therefore his evidence could not be considered as corroborating that of Miller. We need not, we think, consider this contention at any length, for there was testimony upon the part of Zimmerman and other witnesses that Zimmerman was a feigned accomplice, and whatever participation he had in the affair was for the purpose of detecting the parties to the conspiracy. The question as to whether Zimmerman was or was not an accessory was submitted to the jury upon a proper instruction, and the finding of the jury as to that fact would in any event be conclusive.

In State v. Douglas, 26 Nev. 204, 65 P. 802, 99 Am. St. Rep. 688, the accused planned the larceny and suggested it to one King, who consented to join in the commission of the offense, but did not, and who kept the sheriff informed regarding the plans of the defendant, and was appointed his deputy. It was held that King was neither a co-conspirator nor an accomplice, and that his evidence should not be treated as such. The conviction was sustained. Campbell v. Commonwealth, 84 Pa. 187.

The most serious question presented by the record in this case is in reference to the contention made by counsel for the appellant that the facts fail to establish a case of larceny, because it is shown conclusively that the amalgam was taken by the defendant Miller with the consent of the Goldfield Consolidated Milling & Transportation Company, through its authorized agents. In order to determine this question, it will be necessary to review portions of the testimony of the witnesses Miller, Zimmerman, and Sage. Miller, the real accomplice, and Zimmerman, the feigned accomplice, do not entirely agree in their important testimony. The jury were at liberty to believe Zimmerman. They both state that Zimmerman said to Miller, "It's all right." Anything that Miller understood from this was in connection with the plan of his confederates, Smith and Hildebrandt. Miller testified that Zimmerman told him to go ahead. The latter denied this, and testified regarding Miller: "Well, after I told him, 'All right,' he said, 'Did you see Jake?' I says, 'Yes.' He says, 'Well, how will we do it?' I said, 'I supposed you had it all arranged.' I was not supposed to have anything to do with it. He says, 'Well, I'll take some off and give it to you, and you can cache it for me, and I will get it as I go home.' I says, 'No; I won't do that. In the first place, I don't believe it's safe for me to handle it. It's up to you.' He says, 'How will we do it?' I says, 'That's up to you.' I supposed from what Hildebrandt said that everything was arranged."

Regarding the conversation at the California Beer Hall the next day, Zimmerman testified: "Miller insisted on taking the amalgam and giving it to me, but I refused; told him I wouldn't do it. I told him, in the first place, that Mr. Hildebrandt had told me that I would not have anything to do, only turn my back on the proceedings, and that, in the second place, I didn't think it was safe; that the watchmen were possibly watched as much as the watchman watched the workmen, and I wouldn't do it. After we had argued the matter some few minutes, he said he would go ahead all right and take it himself. *** Q. Did you give him any permission to remove that amalgam? A. No more than just as I have stated; that I just said, 'All right,' and didn't object to him doing it. Q. Did you give him any express permission; did you say, 'You may take this amalgam from this mill?' or anything of that kind? A. No there was no such conversation as that. ***"

Zimmerman further testified: "I didn't open the way; I didn't make the proposition. They made the suggestion to me, and after I was advised I done what I did. Q. Didn't you make a suggestion? A. No; Miller made the suggestion to me. Q. I thought you said to Miller, 'All right?' A. I did. Q. Up to that time Miller hadn't said a word, had he? A. He had not. Q. Wasn't that suggesting to Miller that he go ahead and do this? A. Hildebrandt told me to say to Miller, 'All right,' so he could know from me personally that it was all right to go ahead. Q. You were acting upon instructions from Hildebrandt? A. I was."

Sage, the detective of the company, testified regarding Zimmerman: "Told him not to touch any of the amalgam himself in any way. Told him not to give his consent to stealing, and to stand there and watch him, but not give his consent."

Although both are near the border line, the Wisconsin decision, to which our attention has been called, may be distinguished from the present one. That case and others, such as State v. Hull, 33 Or. 57, 54 P. 159, 72 Am. St. Rep. 694, and State v. Waghalter, 177 Mo. 676, 76 S.W. 1028 holding that a conviction cannot be sustained if the owner of the property, for the purpose of entrapping the thief, advises and assists in planning and carrying out the taking, are distinguished from cases more similar to the present one in 30 L. R. A. (N. S.) 951, where it is said regarding that case: "The trespass necessary to constitute larceny is absent, also, where a property owner, upon being informed of a design to steal his property, places it upon a platform where the intending thief is planning to get it, with instructions to his servant in charge of the platform to deliver it to the one who will call for it, so that when the intending thief arrives, he is treated as having a right to the property, especially where another agent of the owner, sent to arrange for the taking of the property, has agreed to the place proposed by the thief, under circumstances which involve a promise of assistance in carrying out the...