State v. Smith

• Court: North Dakota Supreme Court
• Writing for the Court: JOHNSON
• Citation: State v. Smith, 51 N.D. 130, 199 N.W. 187 (N.D. 1924)
• Decision Date: 12 June 1924
• Parties: STATE v. SMITH.

51 N.D. 130

199 N.W. 187

STATE

v.SMITH.

Supreme Court of North Dakota.

April 23, 1924.

Rehearing Denied June 12, 1924.

Syllabus by the Court.

In a prosecution for larceny of an automobile, it is held, for reasons stated in the opinion, that there is evidence sufficient within the requirements of section 10841, Comp. Laws 1913, providing that a conviction cannot be had upon the uncorroborated testimony of an accomplice, tending to connect the defendant with the commission of the offense.

In a prosecution for larceny, where the defendant is held as a principal, under section 9218, Comp. Laws 1913, on the theory that he advised and encouraged the commission of the crime, it is not error to instruct the jury that the possession of property recently stolen, unless satisfactorily explained, is a circumstance tending to show guilt, and may be considered by the jury in determining the guilt or innocence of the accused.

The corroboration required by section 10841, Comp. Laws 1913, need not extend to every material point, or be sufficient, standing alone, to support a verdict of guilty. If the testimony of an accomplice be corroborated as to some material fact, or facts, the jury may infer that he speaks the truth as to all.

Where the evidence tends to show that the defendant suggested to another a plan or scheme contemplating the larceny of an automobile, which the defendant agreed to accept from his confederate, and for which he promised to pay $125, in addition to delivering to the confederate a secondhand car, such defendant is not exonerated from liability as a principal under section 9218, Comp. Laws 1913, because he did not advise the stealing of the specific automobile, or in detail direct the executionof the scheme resulting in the crime. It does not avail the defendant, in such a case, to show that his confederate was left free to exercise his judgment as to the means of accomplishing the criminal purpose contemplated in the original scheme.

Certain instructions of the trial court examined, and, for reasons stated in the opinion, held free from prejudicial error.

Appeal from District Court, McHenry County; C. W. Buttz, Judge.

E. E. Smith was convicted of grand larceny, and he appeals. Affirmed.

Aloys Wartner, of Harvey, and E. R. Sinkler, of Minot, for appellant.

Geo. F. Shafer, Atty. Gen., and Albert Weber, of Towner, for the State.

JOHNSON, J.

The defendant Smith was convicted of the crime of grand larceny. His motion for a new trial was denied. This appeal is from the judgment and from the order denying that motion.

The state's attorney informed against the defendant Smith and one Kyle, charging them with the larceny of an automobile committed on or about the 6th of July, 1922. Defendant Kyle pleaded guilty. He testified as a witness for the state when the appellant was tried, implicating Smith as the one who advised and encouraged the commission of the crime. Smith was not in Velva when the car was stolen, but was at his home several miles distant. It is the theory of the state that Smith, prior to the 6th of July, 1922, advised and encouraged Kyle to steal an automobile and agreed to exchange a car of his own for an inclosed car, to be stolen by Kyle. The state relies on the provisions of section 9218, C. L. 1913, which makes all persons who have advised and encouraged the commission of a crime principals, although not present when the crime is committed by the one advised and encouraged to commit the same.

[1] Smith relies principally upon the contention that the testimony of Kyle, an accomplice, is wholly uncorroborated, in so far as it implicates appellant in the commission of the crime, and that therefore, under the provisions of section 10841, his conviction, resting, as he claims, upon the uncorroborated testimony of Kyle, cannot be sustained. Other errors are assigned by the appellant, but his principal reliance is upon the claim that there is insufficient corroboration of the testimony of Kyle to sustain a conviction; also that the testimony of Kyle himself does not support the claim that the defendant advised the stealing of the specific automobile which Kyle stole from one Welo at Velva on the 6th or 7th of July, 1922.

In order to understand the contentions of appellant, it is necessary to state in some detail the facts as they appear in the record. In the evening of July 6, 1922, one Welo, a resident of Velva, in McHenry county, this state, left a Ford coupé standing in the street in front of his house with a key in the lock. The next morning, July 7, at about 7 o'clock, he discovered that the coupé had been stolen. When he left the automobile the night before three of the fenders had slight cracks in them; roller curtains were on the inside on both sides and on the rear window; it had a large steering wheel, and was equipped with tires in serviceable condition. It also had 1922 North Dakota license tags attached, both in front and rear. The engine had a cracked cylinder head, which, however, had been welded so that the engine was in good working condition. The engine number was 3849116. On the 11th of July the owner discovered his automobile in the garage owned or leased by the defendant Smith in Harvey, about 75 or 80 miles distant from Velva. When he found the car the engine number had been changed to 4841195, three new fenders had been put on, a new cylinder head had replaced the cracked one, four different casings had been put on, and the large steering wheel replaced by a smaller one; the side curtains and the license tags had been removed. The owner replevied the car from Smith and took it home as he found it. Smith did not contest Welo's claim of title, or suggest that the new parts be removed and the old parts returned. There is nothing in the record to indicate what became of the parts taken from the car, except the testimony of Smith, to the effect that the parts are probably lying in or near the garage unless the casings have been carried away by boys in the neighborhood. All of the foregoing facts appear from the testimony of witnesses other than the defendant Kyle.

When the crime was committed defendant Kyle lived at Kenmare and operated a horse drayline. Defendant Smith was a brakeman employed by the Soo Railroad on freight trains running between Harvey and Portal. The testimony tends to show that Smith and Kyle became acquainted at Kenmare some time in May, 1922. Smith testifies that he met Kyle through introduction by one Mulligan, who suggested to Smith that Kyle might know of a car of the description that Smith wanted, namely, an inclosed car. Kyle testifies that he told Smith that he did not own an automobile, and did not know of an automobile such as Smith was looking for; that Smith told him (Kyle) of towns along the road, one of such towns mentioned being Velva, where Kyle could get a car of the kind Smith wanted. Kyle then says that, acting on the information given him by Smith, he went to Velva about 1:30 on the morning of July 7, stole the automobile,drove it to Harvey, accompanied by another man, and reached Harvey at about 7:30 a. m. Kyle testifies that he made no alterations in the car, and that when Smith received it, it was in precisely the same condition as when it was stolen. He states further that before taking the car he went to Harvey and examined the Dodge car which Smith desired to exchange for an inclosed Ford, and for the purpose of ascertaining whether Smith was still in the mood to carry out the bargain which Kyle claims was made. He testifies that the agreement was that Smith would pay him $125 and give him a new carburetor and his old Dodge car for the automobile that Kyle was to get. Kyle testifies that Smith was in bed when he arrived in Harvey on the morning of July 7; that he woke him up and that Smith came down, examined the Ford, and drove his own Dodge out of the garage, while the companion of Kyle drove the stolen Ford into Smith's garage. Kyle says that no questions were asked by Smith as to where the car came from and no information was given by Kyle on this point. Smith's testimony is substantially the same on this point. No bill of sale was requested or received and no receipt given. The testimony further shows that Smith drew a check to himself for $100 and delivered the cash to Kyle, who waited outside. Kyle testifies that Smith said: “If the car is ever going to be picked up, I will protect you, but tell them that I (Kyle) never brought it there.” This testimony as to the promise of protection is not denied by Smith. Kyle, as has been stated, confessed and served a sentence in the penitentiary. On cross-examination Kyle says:

“He [Smith] knew I was going to steal a car. Q. You had told him you were going to steal a car? A. Yes, sir.”

Again Kyle was asked:

“Q. And had Mr. Smith expected you to steal this car for him? A. Yes, sir.”

Smith, testifying in his own behalf, admitted the truth of certain portions of Kyle's testimony. He admitted having talked with Kyle at Kenmare about a trade of his Dodge for a Ford coupé or inclosed car, and that he made the deal substantially as testified to by Kyle, at Harvey on the morning of July 7, 1922. Smith explained that in backing the car out of the garage, he damaged the fenders and consequently replaced the old ones; that one casing had blown out while he was driving either in Harvey or near Harvey, explaining thereby the change in the tires. The explanation of the substitution of a new cylinder head for the cracked one is somewhat inadequate. Smith testified that when he heard the engine run it was working all right, but he did not discover the cracked cylinder head until Kyle was gone, when he decided to change it. Smith testifies that one Roberts helped him to make these various changes that were made, but Roberts was not called to testify. Roberts procured the necessary parts, and Smith gave Roberts the cash with which to pay for the repairs. Smith denies that he removed...