State v. Stevenson

• Decision Date: 03 March 1902
• Citation: 26 Mont. 332
• Parties: STATE v. STEVENSON.
• Court: Montana Supreme Court

26 Mont. 332

STATE

v.STEVENSON.

Supreme Court of Montana.

March 3, 1902.

Appeal from district court, Teton county; D. F. Smith, Judge.

James R. Stevenson was convicted of grand larceny, and from the judgment and an order denying him a new trial he appeals. Affirmed.

J. G. Bair, for appellant.

James Donovan, for respondent.

BRANTLY, C. J.

The defendant was by information charged, jointly with George Jacobson and John Sullivan, with the crime of grand larceny, committed in Teton county on November 28, 1900. The subject of the larceny is alleged to have been five horses branded J. H. L., the property of one Hill and one Messacar. The defendant demanded and was awarded a separate trial. The jury returned a verdict of guilty, where-upon the defendant was sentenced to a term of imprisonment at hard labor in the state prison for the term of 14 years. From the judgment and an order denying him a new trial he has appealed. The points upon which appellant relies for a reversal of the judgment and order are that the verdict is contrary to the evidence, that the court misdirected the jury in matters of law, and that there were irregularities in the proceedings during the trial by which the defendant was prejudiced.

1. The principal witness for the state was George Jacobson, one of the defendants. It is argued that the evidence is not sufficient to warrant a verdict of guilty, because that portion of it introduced by the state in corroboration of the testimony of Jacobson, an avowed accomplice, does not meet the requirements of the rule of law applicable to such cases. From a patient reading of the record many times we find that the corroborative evidence tends to establish, independently of Jacobson's statements, not only the commission of the larceny as charged, but also the defendant's connection therewith. It is true, as counsel contends, that, if the testimony of the accomplice were taken out of the case altogether, and not considered, there would not be sufficient left upon the question of the defendant's guilt; but we do not understand that the statute (Pen. Code, § 2089) requires this amount of corroborative evidence. Its requirement is fully met by evidence which in itself, and without the aid of that of the accomplice, tends to connect the defendant with the commission of the particular offense. State v. Geddes, 22 Mont. 68, 55 Pac. 919. The rule contended for by counsel would prevent a conviction upon the testimony of an accomplice in any case where there was not a substantial corroboration of it upon every material point. Were this the rule, the testimony of the accomplice would generally be of no value, whereas it is often of the case that, subject to the restriction of the statute, it is the only evidence upon which the state may rely. As was said in State v. Calder, 23 Mont. 504, 59 Pac. 903, the statute does not, except by implication, require evidence from independent sources with respect to the corpus delicti. But, conceding for the purposes of this case that it does, the evidence adduced by the state also meets this requirement; for it tends strongly to show, independently of the evidence of Jacobson, that the particular larceny testified to by him was in fact committed.

2. The evidence tends to show that the larceny was committed by Jacobson and Sullivan in the absence of the defendant, but in pursuit of a prearranged plan by which they were to gather a band of horses from the range in Teton county, and drive them to Galata, on the line of the Great Northern Railway, in Choteau county, where the defendant would meet and assist them to load the animals into cars for shipment to market, he having agreed to have cars ready for that purpose. It appears that the arrangement was carried out; that Jacobson and Sullivan gathered about 175 animals, including the 5 described in the information; that they drove them to Galata; that they were there met by the defendant; that the three loaded the horses on the cars; and that, after signing the shipping contract under assumed names, all traveled with the horses to Sioux City, Iowa, where a sale was effected, and the proceeds divided. The defendant was shown to have assumed control of the shipping arrangements and to have directed the sale. He admitted in giving his testimony that he assumed possession with the defendants from that point, claiming that he did so on behalf of his firminSioux City. Touching the possession of the stolen property as an incriminatory circumstance, the court instructed the jury as follows: “The possession of stolen property by the defendants, or either of them, if believed by you, is a circumstance proper to be considered by you in determining the guilt or innocence of the defendants, or either of them. Corroborating circumstances may consist of any acts, conduct, or declarations of the defendant's, or either of them, or any other circumstances tending to show the guilt of the accused.” Counsel insists that this instruction is erroneous, in that it authorized the jury to consider the possession of the horses by either Jacobson or Sullivan as evidence of the guilt of the defendant, whereas possession by himself only should be so considered. As has been said, however, there was evidence tending to show a prearranged plan by defendant and his associates to commit the larceny and to sell the fruits of it. The cause was submitted to the...