State v. Mercer , 114 Mont. 142 ( 1943 )

I dissent. According to the testimony of Girson, the transaction which is the basis of the charge of the crime is one of a series of similar transactions in which he and the defendant both participated, the witness stealing and the defendant receiving from the witness the stolen property. The transactions were all of the same nature and all handled in the same manner, and at brief intervals of time. The common interest was the gain derived by each — to the thief, the price paid him by the receiver, and to the receiver, the reduction in price.

There was an understanding between the two as to the method of handling before the property was stolen, including the price which the receiver would pay to the thief which was definitely established when the first delivery was made. The particular transaction in question was handled on the basis of that understanding and in accordance with the plan arranged between them. It seems to me that the case comes fairly within the rule in the Keithley Case, 83 Mont. 177, 271 P. 449, 452, making the thief the accomplice of the receiver where they conspire together in the common purpose of both, culminating in the delivery of the property to the receiver. (22 C.J.S. pp. 1362, 1363, Criminal Law, sec. 798 subsec. w.)

In the Keithley Case, the fact particularly stressed in the court's opinion as showing the corrupt relation between the witness and the accused, making them participes criminis in the whole transaction, was the instigation of the theft by the accused, the receiver. In the instant case, there is evidence that the accused, the receiver, counselled and encouraged the thief in carrying out his part of the transaction. It is not the strong case of instigation of the crime by the receiver as in theKeithley Case. Here the plan seems to have originated with the thief. He had lawful access and possession of a storehouse full of cigarettes belonging to his employer. The plan was to lift some of these cigarettes and get them into the hands of the accused, which would result in gain to both. Certainly the witness had such part in the receipt of the goods by the accused as made him an accomplice thereto. In my view the case falls within the general rule as to accomplice testimony as defined and illustrated in the Keithley Case, showing its application to varied circumstances of complicity in crime. (And see 22 C.J.S., Criminal Law, sec. 786, pp. 1336-1338.)

Experience has shown that one involved in crime is unreliable as a witness against another charged with crime growing out of the same transaction. Self-preservation is a powerful motive, and where, as in the instant case, the witness is prompted by expectation and promise of leniency to himself in prosecution for the theft, there is reason and need for the rule protecting the other accused against whom he is testifying.

Without the incriminating testimony of the accomplice the record shows nothing but an ordinary, legitimate transaction — a salesman actually in the employ, and known to be in the employ, of a well-known wholesaler, calling on a retailer and offering goods at a price, resulting in a sale. The record is wholly lacking in the corroboration necessary to sustain the conviction. The judgment, in my opinion, should be reversed.

Rehearing denied February 9, 1943.