State v. Standley, 14200

• Decision Date: 14 December 1978
• Docket Number: No. 14200,14200
• Citation: 35 St.Rep. 1631,586 P.2d 1075,179 Mont. 153
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Jack G. STANDLEY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1075

586 P.2d 1075

179 Mont. 153

The STATE of Montana, Plaintiff and Respondent, v. Jack G. STANDLEY, Defendant and Appellant.

No. 14200.

Supreme Court of Montana.

Submitted Oct. 23, 1978.

Decided Nov. 8, 1978.

Rehearing Denied Dec. 14, 1978.

Gary E. Wilcox argued, Billings, Russell Shultz argued, Wichita, Kan., for defendant and appellant.

Harold F. Hanser, County Atty., Billings, Charles Bradley argued, Deputy County Atty., Billings, Mike Greely, Atty. Gen., Helena, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant appeals from his conviction of the theft following a jury trial in the Yellowstone County District Court.

In the early morning hours of March 22, 1977, 106 new R.C.A. color television sets were stolen from the Ramada Inn warehouse in Billings, Montana. This warehouse is located directly behind the motel.

The theft was discovered by the Ramada's maintenance foreman when he unlocked the warehouse in the morning. He found a place in back of the building where the sheet metal was torn. He also noticed some tire tracks in the soft dirt behind the building.

The Billings police during their investigation determined that the vehicle which made the tire tracks had dual wheels in back and a single axle in front. The police photographed the tracks and made plaster casts of them.

On or about March 25, 1977, Stephen Haborstak, who operated the T & J Electronics Company, received a phone call from Orie Dosdall, a farmer near Pryor, Montana. Dosdall wanted Haborstak to come out to his home and fix his television set. It was Haborstak who had been employed by the Ramada to install the television sets in the motel rooms. After Dosdall described the television set and the difficulty he was having with it, Haborstak became suspicious that this was one of the sets taken from the Ramada Inn. He called the police and informed them of Dosdall's call and then went out to Dosdall's farm to repair the television. In repairing the set, he noticed that the serial number had been removed from the outside of the set but found the serial number on the inside of the set. This identified it as one of the stolen television sets.

Because of the information Haborstak gave the police, they obtained a search warrant for the Dosdall property. The police searched the property on March 30, 1977. They found eight of the R.C.A. television sets stolen from the Ramada, along with some other stolen property.

The State filed an Information against defendant charging him with felony theft in violation of section 94-6-302(1), R.C.M. 1947. Defendant pled not guilty to the charge. The case came on for trial on October 25, 1977.

Dosdall was a witness for the State at defendant's trial. Dosdall testified that defendant, whom he had known for 10 to 15 years, came to his farmhouse around 5:00 a. m. on March 22. He testified that defendant wanted a logging chain to pull a truck. A half hour after getting the logging chain, defendant returned seeking Dosdall's help in pulling the truck. Dosdall helped defendant and another man by pulling the van truck onto his property with his tractor. Defendant and the other man then left in defendant's car.

Dosdall further testified that later in the day he got the van started after putting some gas in it. When he got the engine going, Dosdall said he was then able to operate the hydraulic lift on the van and look inside. He testified that the van was full of uncrated television sets. Dosdall testified that, with the help of his hired hand, Phillip Dolichek, he removed eight television sets from the van.

According to Dosdall, defendant and the other man returned the next day or the day after and removed four tires from the van. Dosdall said that the van had rear duals and two of them were removed. He said that when they removed the tires defendant was driving his Toyota pickup. At that time, Dosdall talked with defendant and asked what was in the van. Defendant only smiled. Dosdall testified that they returned the next night and put the tires back on. Dosdall was not certain whether the van left the night the tires were put back on or the next night.

Dosdall went on to testify that the day after the van left, the driver of the van came to Dosdall's for help in pulling the van out of a ditch. After Dosdall got dressed and came outside, the van driver pulled a gun out and placed it next to Dosdall's ear. Dosdall testified that defendant was in his pickup in the yard. The van driver told Dosdall to keep quiet about the television sets or they would kill him and his family. At that point, defendant told the other man to cut it out. The van driver then put his gun away. Dosdall then testified that defendant and this other man followed him back to his house and eventually left.

Dolichek testified that the van arrived in the early morning hours around March 21. He testified that he never saw the men who were driving it. He said that it was full of television sets and he helped defendant remove several of them. He said that the van was on the property for about three days.

Ralph Havin, the manager of Gus and Jack's Tire Shop in Billings, testified that defendant came to his shop on March 25 to have some tires fixed. He said that three of the tires were good and one was flat. He said that two of the tires were on Chevrolet wheels and two were on Ford or Dodge wheels. The van, according to Dosdall, was a Dodge. Dosdall, however, testified that none of the tires were flat.

Havin testified that when defendant came back he gave him two tires on wheels, two empty wheels, and one loose tire. He said he could not remember which of the wheels had the tires on them. Havin was shown the pictures of the tire tracks from behind the Ramada warehouse. He said the tires that made those tracks were 8.25- 20 or 9.00-20, which could have been the same size that defendant had brought in to him. Havin also testified that when defendant came to his shop he was driving his Toyota pickup.

At the close of the State's case, defendant moved for a judgment of acquittal, which the District Court denied. Defendant then rested his case without presenting any evidence. The jury returned a verdict of guilty. Following the denial of his motion for new trial, the court sentenced defendant to ten years in the State Prison. Defendant is now free on bail pending this appeal.

Defendant raises three issues in his appeal:

(1) Was the testimony of Dosdall sufficiently corroborated?

(2) Did the District Court err in denying his motion for acquittal?

(3) Was the prosecution's closing argument prejudicial?

The court instructed the jury that Orie Dosdall was an accomplice of defendant and that his testimony had to be corroborated as required by section 95-3012, R.C.M. 1947. Defendant did not object to these instructions and does not do so now. Defendant's position is that Dosdall's testimony was not sufficiently corroborated. We disagree.

Defendant was charged with...