No. 12773
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1974
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs -
RICHARD CLARENCE PEPPERLING,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C h a r l e s Luedke, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
John L. Adams a r g u e d , B i l l i n g s , Montana
F o r Respondent :
Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
Montana
Thomas A. Budewitz, A s s i s t a n t A t t o r n e y G e n e r a l ,
a r g u e d , Helena, Montana
Harold F. Hanser, County A t t o r n e y , B i l l i n g s , Montana
C h a r l e s A. B r a d l e y , Deputy County A t t o r n e y , a r g u e d ,
B i l l i n g s , Montana
Submitted : September 13, 1974
Decided : a@r 3 1974
2
Filed : oc%$ 3 19'743
Mr.J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.
The d e f e n d a n t , R i c h a r d C l a r e n c e P e p p e r l i n g , was c o n v i c t e d
o f t h e c r i m e of b u r g l a r y i n t h e f i r s t d e g r e e and s e n t e n c e d t o
a t e r m o f f i f t e e n y e a r s i n t h e Montana S t a t e P r i s o n . From t h i s
conviction, t h e defendant has appealed.
The e v i d e n c e i n t r o d u c e d i n t h i s c a s e d i s c l o s e s t h a t on
October 1 9 , 1972, sometime between t h e h o u r s of 10:30 p.m. and
1 1 : O O p.m., t h e a p a r t m e n t b e l o n g i n g t o M r . and M r s . W i l l i a m Gross
was burglarized. The a p a r t m e n t was e n t e r e d by someone who had
opened t h e k i t c h e n window w h i l e s t a n d i n g on a n o l d c a r a x l e and
r i m t h a t was l o c a t e d b e n e a t h t h e window.
Gross i s t h e owner of t h e Rimrock Tavern i n B i l l i n g s ,
Montana. The t a v e r n i s l o c a t e d d i r e c t l y i n f r o n t o f h i s a p a r t -
ment. On t h e n i g h t o f t h e c r i m e , Gross r e t u r n e d t o h i s a p a r t m e n t
from t h e t a v e r n a t a b o u t 1 1 : O O p.m. and d i s c o v e r e d t h a t t h e
m a t t r e s s i n h i s bedroom had been shoved t o one s i d e , h i s d r e s s e r
drawer had been opened, and t h e c o n t e n t s o f h i s bedroom c l o s e t
had been s c a t t e r e d t h r o u g h o u t h i s bedroom. Gross r e t i r e d f o r
t h e n i g h t t h i n k i n g t h a t h i s w i f e had c a u s e d t h e d i s r u p t i o n .
When Gross a r o s e t h e f o l l o w i n g morning, he n o t i c e d t h a t
h i s k i t c h e n window had been opened and t h a t a c o n s i d e r a b l e amount
of money hidden i n t h e bedroom had been s t o l e n . The money had
been l o c a t e d i n a d r e s s e r drawer and i n a c l o t h e s hamper t h a t
had been p l a c e d i n t h e bedroom c l o s e t .
During t h e t r i a l , Gross t e s t i f i e d t h a t a p p r o x i m a t e l y
$9,500 i n paper c u r r e n c y , $2,000 i n pre-1965 s i l v e r c o i n s , and
a r o l l and a h a l f of I n d i a n head p e n n i e s had been t a k e n . In-
c l u d e d i n t h e p a p e r c u r r e n c y , were s i x t y o r s e v e n t y one-hundred
d o l l a r b i l l s t h a t were i n " r e a l f i n e c o n d i t i o n v - - p r a c t i c a l l y
u n c i r c u l a t e d ; a t l e a s t f i f t e e n f i f t y d o l l a r b i l l s ; and a p p r o x i -
m a t e l y $3,000 i n twenty d o l l a r b i l l s . An o l d f i f t y - c e n t p i e c e
with a chip on its corner, making it identifiable, had also
been taken. The roll of Indian head pennies also had peculiar
dates that Gross could recall.
On October 20, 1972, the day after the crime had been
committed, the defendant left the Billings area by bus and trav-
eled to Denver, Las Vegas, and Portland, Oregon where he was
arrested for parole violation on October 29, 1972. At the time
of his arrest, the defendant was carrying $4,011.83, which in-
cluded eighteen one-hundred dollar bills, eighteen fifty dollar
bills, sixty-five twenty dollar bills, in addition to other bills
of smaller denominations. The defendant was also carrying seventy-
nine Indian head pennies and three fifty cent pieces, one of which
contained a chip on its corner. A watch and a ring were also
found.
The appellant was arrested in Portland, Oregon nine days
after leaving Billings. He was an immediate suspect when the
burglary was discovered and when law officers contacted his
parole officer on October 20, it was learned that he had left
the state without permission and was therefore in violation of
his parole. Law officials in the western states were notified,
mug shots were circulated, resulting in an unusually fine job of
police work by officers of the Portland, Oregon department. Two
policemen in a patrol car were driving down a street on the night
of October 29 and one of them looked into a lighted telephone
booth where he recognized appellant from a mug shot shown at the
department. The two officers went back and questioned appellant
as to his identity. He gave a false name, denied he was Pepperling,
denied he was wanted and it was not until his identification was
made through fingerprints sent to the Federal Bureau of Investigation
that he finally admitted his identity. This very denial, under
the circumstances,was a factor properly considered by the jury.
During t h e t r i a l , Gross s t a t e d t h a t t h e o l d f i f t y c e n t
p i e c e r e c o v e r e d from t h e d e f e n d a n t looked f a m i l i a r b e c a u s e of
i t s chipped corner. H e was u n a b l e t o i d e n t i f y t h e 1 n d i a n head
p e n n i e s from marks o r o t h e r c h a r a c t e r i s t i c s , b u t s t a t e d t h a t
t h e d a t e s on t h e p e n n i e s found i n d e f e n d a n t ' s p o s s e s s i o n c o r r e s -
ponded somewhat w i t h t h e p e n n i e s t h a t had been t a k e n from h i s
apartment. Gross had n o t r e c o r d e d t h e s e r i a l numbers on t h e
paper currency. C o n s e q u e n t l y , he c o u l d o n l y i d e n t i f y t h e one-
hundred d o l l a r b i l l s from t h e i r c o n d i t i o n - - t h e y were a l l i n v e r y
good, a l m o s t u n c i r c u l a t e d c o n d i t i o n .
Mrs.
/Gross t e s t i f i e d t h a t no o n e , i n c l u d i n g h e r own c h i l d r e n ,
had been informed t h a t t h e money had been h i d d e n i n t h e bedroom.
However, t h e e v i d e n c e d i s c l o s e d t h a t a b o u t two weeks p r i o r t o
t h e b u r g l a r y , M r . Gross had a g r e e d t o l e n d t h e d e f e n d a n t twenty
d o l l a r s and had t a k e n him t o t h e a p a r t m e n t t o s e c u r e t h e money.
While t h e d e f e n d a n t remained i n t h e d i n i n g room, Gross e n t e r e d
t h e bedroom and t o o k t w e n t y d o l l a r s from i t s h i d i n g p l a c e i n t h e
closet. The r e c o r d i s b a r r e n of any c l e a r t e s t i m o n y t h a t t h e
d e f e n d a n t a c t u a l l y saw Gross remove t h e money from t h e c l o s e t .
However, t h e r e i s no d o u b t t h a t t h e d e f e n d a n t w i t n e s s e d Gross
r e t u r n from t h e bedroom w i t h t h e money.
During t h e t r i a l , e v i d e n c e was a l s o b r o u g h t f o r t h t h a t
t h e d e f e n d a n t had e a r n e d a p p r o x i m a t e l y $900 i n wages d u r i n g
t h e t h r e e months immediately p r e c e d i n g t h e b u r g l a r y and had s p e n t
a p p r o x i m a t e l y $300 of t h a t money f o r food and l o d g i n g .
A l l o f t h e money found i n t h e d e f e n d a n t ' s p o s s e s s i o n a t
t h e t i m e of t h e a r r e s t and t h e watch and t h e r i n g were a d m i t t e d
i n t o evidence over defense c o u n s e l ' s o b j e c t i o n s .
The d e f e n d a n t h a s r a i s e d t h r e e i s s u e s i n t h i s a p p e a l which
w i l l be c o n s i d e r e d i n t h e o r d e r s e t o u t below:
1. Was t h e e v i d e n c e s u f f i c i e n t t o s u s t a i n t h e b u r g l a r y
conviction?
2. Was the money found in the defendant's possession
properly identified as the money taken in the burglary so as to
allow its admission into evidence?
3. Did the district court commit reversible error in
allowing the watch and the ring to be admitted into evidence?
In relation to the first issue, the defendant argues that
the State has failed to prove an essential element in the crime
of burglary, namely, that the defendant had made an entry into
the burglarized premises.
At the time this crime was committed, section 94-901,
R.C.M. 1947, was in effect. This statute reads:
"Every person who enters any house, room,
apartment, tenement, shop, warehouse, store,
mill, barn, stable, outhouse, or other building,
tent, motor vehicle and aircraft, vessel, or
railroad car, with intent to commit grand or
petit larceny or any felony, is guilty of
burglary."
, t'i
This Court in State v. Kinghorn, 109 Mont. 22, 93 P.,;,k
964, held in a burglary case that while mere possession of
recently stolen property during the commission of a burglary does
not raise a presumption of guilt as a matter of law, where it is
accompanied by other incriminating circumstances, and false or
unreasonable explanation, it is sufficient to carry the case to
the jury and support conviction; in applying the rule that in-
ference of guilt because of possession decreases in proportion
to the lapse of time from the taking to its finding, the further
rule must be applied that each case must rest largely upon the
surrounding circumstances, the matter resting in the discretion
of the court.
It is well established in Montana that the mere posses-
sion of stolen property, by itself, is insufficient to justify a
conviction of burglary. If the State establishes the corpus
d e l e c t i of b u r g l a r y and a l s o p r o v e s t h a t t h e d e f e n d a n t was i n
e x c l u s i v e p o s s e s s i o n of t h e s t o l e n a r t i c l e s s h o r t l y a f t e r t h e
b u r g l a r y had o c c u r r e d , a p e r m i s s i b l e i n f e r e n c e t h a t t h e de-
f e n d a n t had committed t h e b u r g l a r y would a r i s e , even though
d i r e c t e v i d e n c e of t h e e n t r y by t h e d e f e n d a n t was n o n e x i s t e n t .
However, t h e f a c t of p o s s e s s i o n must be c o r r o b o r a t e d by o t h e r
incriminating circumstances i n order t o j u s t i f y t h e g u i l t y ver-
dict. S t a t e v . S p a r k s , 4 0 Mont. 82, 105 P. 87; S t a t e v. Gray,
152 Mont. 1 4 5 , 447 P.2d 475; S t a t e v . Kinghorn, s u p r a ; S t a t e v .
P r o c t o r , 153 Mont. 90, 454 P.2d 616; S t a t e v . Deeds, 126 Mont.
38, 243 P.2d 314 and 2 W h a r t o n ' s C r i m i n a l Law and P r o c e d u r e ,
Section 4 1 1 (1957).
Here, t h e S t a t e d i d n o t p r e d i c a t e i t s e n t i r e c a s e upon
t h e i s o l a t e d f a c t of p o s s e s s i o n . I t went much f u r t h e r t o e s -
t a b l i s h t h e following corroborating f a c t s :
1. The f a c t t h a t d u r i n g t h e t h r e e months i m m e d i a t e l y
p r i o r t o t h e b u r g l a r y , t h e d e f e n d a n t had o n l y e a r n e d $900 and
had s p e n t a p p r o x i m a t e l y $300 of t h a t money f o r food and l o d g i n g .
When t h e p r e c e d i n g f a c t i s c o u p l e d w i t h t h e f a c t t h a t t h e de-
f e n d a n t was found t o have $4011.83 i n h i s p o s s e s s i o n a t t h e t i m e
o f h i s a r r e s t , a n o t h e r i n f e r e n c e of g u i l t a r i s e s . On t h i s p o i n t ,
i n 1 Wigmore on Evidence, 5 154 ( 3 r d E d . ) , i t i s s t a t e d :
"Another mode, however, of making t h e f a c t of
money-possession r e l e v a n t i s t o show i t s sudden
o s s e s s i o n , i . e . t o show t h a t b e f o r e t h e t i m e
z f t a k i n g t h e p e r s o n was w i t h o u t money, w h i l e
immediately a f t e r t h a t t i m e h e had a g r e a t d e a l ;
t h i s reduces t h e hypotheses t o such a s involve
sudden a c q u i s i t i o n , and a d i s h o n e s t a c q u i s i t i o n
t h u s becomes a n a t u r a l and prominent h y p o t h e s i s .
On s u c h c o n d i t i o n s t h e p o s s e s s i o n o f u n i d e n t i -
f i e d money becomes r e l e v a n t . "
2. The f a c t t h a t t h e d e f e n d a n t l e f t t h e B i l l i n g s a r e a
and Montana, i n v i o l a t i o n of h i s p a r o l e , on t h e day a f t e r t h e
c r i m e had been committed i s a n o t h e r c o r r o b o r a t i n g f a c t .
This Court has stated that " * * * if the jury are
satisfied that the crime charged in the information has been
committed by someone, then they may take into consideration
any testimony showing, or tending to show, flight or concealment
by the defendant, in determining whether the defendant is the
party guilty of the offense * * *." State v. Paisley, 36 Mont.
237, 252, 92 P. 566. See also: State v. Walker, 148 Mont. 216,
419 P.2d 300 and State v. Bonning, 60 Mont. 362, 199 P. 274.
3. Still another corroborating fact is that the undis-
puted testimony of both Mr. and Mrs. Gross had revealed that no
one had been informed that money had been hidden in the bedroom
closet. When the preceding fact is combined with the defendant's
knowledge that Gross went to the bedroom to get money to loan him,
an inference of knowledge of where the money was located and an
inference of guilt when that money was found missing, arises.
In California the defendant's familiarity with the bur-
glarized premises may be considered by the jury in a burglary
prosecution. People v. Goodall, 104 C.A.2d 242, 231 P.2d 119;
People v. Mercer, 103 C.A.2d 782, 230 P.2d 4; and People v.
Bennett, 93 C.A.2d 549, 209 P.2d 417.
Furthermore, the defendant's knowledge as to where the
stolen goods were concealed is a material circumstance to be
considered in determining guilt. People v. Cooper, 81 C.A.2d
110, 183 P.2d 67.
In reviewing the jury's verdict in a criminal matter when
it has been alleged that the evidence is insufficient to support
the verdict, the function of this Court is to determine if the
verdict is supported by substantial evidence. We will not dis-
turb a verdict based upon substantial evidence. State v. Bouldin,
153 Mont. 276, 456 P.2d 830; State v. Kendrick, 127 Mont. 403,
265 P.2d 201; State v. Curtiss, 114 Mont. 232, 135 P.2d 361.
We hold that the corroborating circumstances are suf-
ficient, when combined with the incriminating fact of possession,,
to uphold the verdict of the jury.
In relation to the second issue, the defendant argues
that the money was insufficiently identified to allow its admis-
sion into evidence. We disagree.
In Proctor, a considerable amount of money, including ten
rolls of fifty cent pieces had been stolen in a burglary. The
coins were identified by the peculiar manner in which they had
been rolled. This Court held that a positive identification had
been made and cited State v. Wilroy, 150 Mont. 255, 434 P.2d
138, for the proposition that the " * * * lack of positive ident-
ification goes to the weight of the evidence, rather than to its
admissibility."
Utah
In State v. Manger, 7 /.2d 1, 315 P.2d 976, a Utah case,
the court held that a positive identification of money had been
made since the money found on the defendant and the money stolen
corresponded in a fairly close way and there was evidence show-
ing that the defendant did not have a considerable sum of money
immediately prior to the burglary. The same situation exists in
the present case.
In People v. Chapin, 145 C.A.2d 740, 747, 303 P.2d 365, the
California court stated:
"While, of course, it is impossible to identify
currency (unless the numbers are known), the
similarity in the size of the bills in the
possession of defendant with those of the victim,
harticularly large bills which generally are
not carried, is significant. ' * * * although
the fact that defendant used "money of the same
kind as that which was recently stolen" ordinarily
would constitute but slight evidence of the
guilt of defendant, nevertheless, if such money
was of a kind "rarely seen in circulation," the
weight to be attached to such evidence is consider-
ably increased * * * . ' "
In People v. Brumback, 152 C.A.2d 386, 314 P.2d 98, the
California court applied the preceding rationale to the intro-
duction of six one-hundred dollar bills into evidence.
In the present case, the money stolen consisted of
several one-hundred dollar bills that were in uncirculated con-
dition, at least fifteen fifty dollar bills, a roll and a half of
Indian head pennies, and a fifty cent piece with a chip on its
corner, among other paper currency and small change. The money
found in the defendant's possession corresponded in a close and
peculiar way. Remembering the rule in Wilroy and Proctor that
the "lack of positive identification goes to the weight of the
evidence rather than to its admissibility", we are satisfied that
the money had been properly admitted into evidence.
In relation to the third issue, the defendant argues that
the court erred in admitting the watch and the ring into evidence
because by so doing, an inference was raised that the items had
been stolen. We find no merit in this contention because a
receipt showing that they had been purchased in Las Vegas was
also admitted into evidence. Consequently, the watch and the
ring were not admitted for the purpose of showing that they had
been stolen but to show that the defendant's pecuniary condition
had changed subsequent to the alleged burglary.
For the foregoing reasons, the judgment of conviction
is affirmed.
We concur:
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Chief Justice
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