State v. Cox , 74 Utah 149 ( 1929 )

John Cox was convicted of burglary in the second degree, and appeals. The crime consisted of breaking into a granary in Beaver county, belonging to H.H. Ashworth, on the night of March 18, 1927, and stealing wheat therefrom. An accomplice, Dee Patterson, testified that he, together with the accused and one other, went to the granary at the time charged in an automobile belonging to Wm. Richards, entered the granary, and took the wheat and hauled it to town, four miles away, where it was loaded in a wagon, and on the next day sold to Lawrence White.

By other evidence it was proved that a considerable quantity of wheat disappeared from the granary on the night in question, and that on the following morning fresh automobile tracks were discovered leading to and from the granary. The tracks had peculiar marks, indicating the particular kind of tires of the rear wheels of the car which made them, and corresponded precisely with the rear tires upon an automobile belonging to Wm. Richards. Scattered grains of wheat were found on the ground near the granary where the automobile had evidently backed up and stopped. And a curtain rod identified as belonging to the Richards car was soon thereafter found on the road between the granary and town. It was proved that Wm. Richards had let the car to the accused on the night in question. Other evidence showed that the accused was connected with the sale and delivery of wheat to Lawrence White on the following day, and that a check given by Lawrence White for the wheat was made payable to the accused, and was thereafter indorsed by him. The accused offered no evidence whatever.

The principal contention of appellant is that the evidence is insufficient to sustain the verdict because the testimony of the accomplice was not "corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense," as required by Compiled Laws Utah 1917, § 8992.

We have heretofore held that the test of sufficiency of corroborative evidence is that it need not be sufficient in itself to support a conviction, but it must implicate the accused in the offense, and not be consistent with his innocence, and must do more than cast a grave suspicion 1 on the accused. State v. Lay, 38 Utah 143, 110, P. 987; State v. Butterfield (Utah) 261 P. 804. Subjected to this test, we think the corroboration in the present case was sufficient to answer the requirement of the statute, and that the verdict is supported by the evidence.

At the trial, and over the objections of the appellant, the state proved that one Yardley, who owned a farm adjoining Ashworth's, had missed wheat from his granary from time to time during January, February, and March, 1927. And it was proved that the appellant had made sales of wheat at 2 several times during those months. Appellant complains of the admission of such evidence because he contends it related to independent offenses not connected with the crime charged. We are inclined to think the evidence was erroneously admitted, but, in view of the satisfactory and convincing evidence of the appellant's guilt, which stands wholly undisputed, the erroneous admission of the evidence does not call for a reversal of the judgment. Without the objectionable evidence, the verdict must have been the same. Jackson v. People, 126 Ill. 139,18 N.E. 286; People v. Wilkinson, 30 Cal.App. 473, 158 P. 1067;People v. Skrypczak, 220 Mich. 222, 189 N.W. 854; State v.Owens, 124 S.C. 220, 117 S.E. 536; Carpenter v. UnitedStates (C.C.A.) 280 F. 598; State v. Cluff, 48 Utah 102,158 P. 701; State v. Nell, 59 Utah 68, 202 P. 7; State v.Woods, 62 Utah 397, 220 P. 215; State v. Hadley, 65 Utah 109,234 P. 940; State v. Seyboldt, 65 Utah 204, 236 P. 225.

During the trial the accused presented an affidavit that he was impecunious and unable to pay the per diem and mileage of his witnesses, and that numerous named witnesses were material and important witnesses and their testimony material as a part of his defense, and asked for an 3 order under Comp. Laws Utah 1917, § 2555, that the witnesses named be subpoenaed at the expense of the state. In the absence of the jury, the accused was cross-examined by the district attorney respecting his impecuniosity, and facts were discovered which warranted the court in denying the order upon the ground that the accused was not unable to pay the per diem and mileage of his witnesses. Besides, the affidavit failed to show the materiality of the testimony of the witnesses named, as required by the statute, in this, that no showing of what the witnesses would testify to was made, and no showing that his counsel had advised him that the evidence of such witnesses was material for defendant's defense. We perceive no error in the denial of the demand.

When Dee Patterson (the accomplice) was called as a witness on behalf of the state, the defendant's counsel objected to his testifying as a witness on the ground "that it would be against his wishes and be compulsory and against his interests." He asked the witness if he objected to 4 testifying on the ground that it might tend to incriminate him, and the witness answered "Yes." The objections made were overruled. Thereafter specific questions were asked the witness concerning the commission of the crime charged against the accused, to which no objections were made and which were answered by the witness. Appellant's counsel says, "The court erred in compelling the witness, Dee Patterson, to testify over his objection and over the objection of the defendant, under the conditions and circumstances shown in the record." This contention has no merit. There is no case here of a witness being compelled to answer particular questions over his objections on the ground that such testimony would tend to incriminate him. The objection by the accused to the witness testifying at all, which was the substance of the objection here, was not a valid objection, and was correctly overruled.

Error is also assigned for a comment upon the failure of the defendant to testify, arising during the argument by the district attorney to the jury, when defendant's counsel interrupted him by asking why he had not called to the witness stand Richard Cox, a codefendant of the accused. Whereupon 5 the district attorney replied:

"Why didn't you put on John Cox?" Upon exception being taken to the remark of the district attorney, the court instructed the jury to pay no attention to the statement; that the defendant was not required to take the stand and testify; and that no conclusion should be drawn from the fact that he had not testified as a witness. Under such circumstances, the error, if any, is not ground for reversal. People v. Higgins, 9 Cal.App. 267,98 P. 683.

Other errors are assigned but not argued. We have carefully examined and considered the whole record, and find no reason sufficient to justify a reversal of the judgment.

Judgment affirmed.

EPHRAIM HANSON AND FOLLAND, JJ., concur.