State v. Phillips

MR. JUSTICE FREEBOURN:

(dissenting).

Defendant was convicted of the crime of forgery by passing a state warrant for gasoline tax refund upon which the name “Paul Karst” had been unlawfully placed and signed.

From the record it appears that the placing and signing of the name “Paul Karst” upon such warrant were brought about by two witnesses, Tomlinson and Lake.

It is defendant’s contention that Tomlinson and Lake are accomplices, upon whose tesitmony the conviction of defendant rests, and that, under R. C. M. 1947, sec. 94-7220, such conviction cannot stand. R. C. M. 1947, sec. 94-7220, provides: “A convic*396tion cannot be had on the testimony of an accomplice, unless he is 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; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof. ’ ’

The above quoted statute makes it imperative that corroboration of the testimony of an accomplice is an essential prerequisite to the conviction of a- defendant where the crime charged rests primarily and solely upon the testimony of an accomplice, and this court has no control over the subject except to apply the statute. This court has no discretion in the matter but is bound to apply the statute indiscriminately to all cases wherever an accomplice appears as a witness, and the state’s ease depends solely upon his uncorroborated testimony. State v. Keckonen, 107 Mont. 253, 84 Pac. (2d) 341; People v. Robbins, 171 Cal. 466, 154 Pac. 317.

That Tomlinson and Lake were ‘1 concerned in the commission of” the crime charged, which brought about the cashing of the false warrant, is beyond question. They caused the name of ‘ ‘ Paul Karst ” to be placed and signed upon such warrant, without which name the warrant was uncashable. They were, therefore, principals in the forgery and could have been informed against for the same offense of which defendant was accused.

“All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, * * * are principals in any crime so committed.” R. C. M. 1947, sec. 94-204.

Tested by the rule laid down by this court, Tomlinson and Lake are accomplices. The general test to determine whether a witness is or is not an accomplice is: Could he himself have been informed against for the offense, either as principal or accessory! If he could, then he is an accomplice. State v. Keithley, 83 Mont. 177, 271 Pac. 449.

*397And, “The general rule is that the testimony of one accomplice cannot be accepted as sufficient corroboration of the testimony of another; and hence, there can be no conviction on the testimony of accomplices alone, no matter how many there may be, if their testimony is not corroborated by evidence apart from accomplice testimony.” 22 G. J. S., Criminal Law, sec. 812, p. 1408.

A reading of the record shows no corroborating evidence sufficient, as required by section 94-7220, supra, to justify the conviction of the defendant upon the testimony of the accomplices, Tomlinson and Lake. There is no corroborating evidence which tends even to show “the commission of the offense, or circumstances thereof, ’ ’ and if it did it would be insufficient. See sec. 94-7220, supra.

In State v. Geddes, 22 Mont. 68, 55 Pac. 919, 924, this court said: “Whatever difference of opinion formerly existed as to what particular facts should be corroborated, and the extent of the corroboration required, where convictions were asked for upon an accomplice’s testimony, it is settled in this state, by the statute quoted, [sec. 2089, Penal Code of 1895, now R. C. M. 1947, sec. 94-7220, supra] that the corroboration must be evidence from an independent source, and it must be such that this independent evidence, in itself, without considering the testimony of the accomplice at all, tends to connect the defendant with the commission of the crime charged. Furthermore, it is not a satisfaction of the statute to corroborate an accomplice upon immaterial matters, or to prove merely that the crime charged has been committed, or the circumstances under which it has been committed; for there may be all such proof, and yet the additional essential evidence be lacking, which, independently of the evidence of the accomplice, leads to the inference that the defendant is connected in a criminal way with the commission of the crime. The statute is conformable to the rule laid down by Rose. Cr. Ev. p. 122. ‘That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads to the inference, not only that a crime *398has been committed, but that the prisoner is implicated in it. ’ ” This court, in State v. Lawson, 44 Mont. 488, 120 Pac. 808, and in State v. Keckonen, 107 Mont. 253, 84 Pac. (2d) 341, has followed this same rule.

The fact that the testimony shows that the defendant in the ordinary course of business found the warrant in his cash register and openly took it to the Montana Power Company to pay a bill owing, is not the corroboration which the law requires before the testimony of the accomplices can be considered. It tends in no way to connect the defendant with the commission of the offense of forgery. It does not even show the commission of the offense or the circumstances thereof. And if it did it would be insufficient for “the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.” R. C. M. 1947, sec. 94-7220, supra.

If the majority opinion is allowed to stand then any business man, no matter how honest, who unwittingly cashes a forged check or warrant, may be charged, tried and convicted, and sent to the state penitentiary.

Tkj cause should be dismissed for the reason that the evidence is insufficient to sustain a conviction.