(dissenting).
I dissent.
The majority relies upon the rule of law stated in State v. Drapeau, 1922, 45 S.D. 507, 189 N.W. 305 that “apparent intimacy in the neighborhood of the place where the crime was committed” may be sufficient to corroborate an accomplice’s testimony. The facts in support of this proposition are said to be Jensen’s testimony that the defendant and Friesen had been at his farm and had walked out the front door at “approximately” the same time. The evidence of “intimacy” — i. e., friendship or acquaintance — is Friesen’s own testimony. No one saw them leave Jensen’s farm together and there is no evidence of anything but a mutual acquaintance with Jensen. To prove intimacy, something more than a mere association must be shown for corroboration. 23 C.J.S. Criminal Law § 812(4)g. Furthermore, mere presence near the scene is not sufficient corroboration unless accompanied by suspicious circumstances. 23 C.J.S. Criminal Law § 812(4)f. Drinking beer at a friend’s home is hardly suspicious behavior.
The only other evidence for corroboration is Diane Wiker’s testimony about a conversation between Friesen, Beene and the defendant. The defendant has said very little except for making the rather ambiguous statement that “he had spent enough time in jail.” At that time only Friesen and Beene had been charged with burglary. There is no evidence that Rauscher had even been implicated at that time. There is nothing in Diane Wiker’s testimony to indicate that defendant was concerned about Friesen’s testimony, since he had not yet even been arrested. Beene’s rather vociferous statements and admission of doing the “driving” can hardly be implied to the defendant to connect him to the commission of the crime. Likewise the defendant’s silence would hardly seem to be an admission under the circumstances, since he had not yet been accused of the burglary.
The fact that the defendant’s alibi witnesses were not with the defendant at all times during the night in question seems hardly the type of evidence to connect the defendant with the crime. The burden is upon the state to produce the evidence to connect him with the crime; it is not the burden of the defendant to prove he was not at the scene.
I think that the facts of State v. Drapeau were much more corroborative than here— for instance: the defendant there was in the company of the accomplice when he attempted to borrow a gun to “go rob a woman of $200”; the defendant was with the accomplice when he tried to borrow a gun from another friend; one and a half hours before the robbery, the defendant’s wife observed the accomplice show her husband the gun; and during the robbery, the victim heard one robber refer to the other as “Ray,” the defendant’s first name.
It appears that the corroborating evidence against Beene is being used against the defendant who is found guilty for his association not with Friesen, but with Beene.