Opinion
File No. 9342.
Opinion filed February 3, 1954.
1. Criminal Law.
The thief who steals property which defendant is charged with having received with knowledge of its character as being stolen is not an accomplice of the defendant as receiver of the stolen property, and thus testimony of the thief need not be corroborated when admitted against defendant. SDC 13.3813.
2. Criminal Law.
In prosecution under information in which defendant was charged with receiving personal property that had been stolen from another, knowing it to have been stolen, testimony of thieves, and wife of one of them who was present when property was stolen, was admissible and could be considered against the defendant, without necessity of corroboration, since such parties were not accomplices. SDC 13.3813.
3. Criminal Law.
In prosecution of defendant for receiving stolen property, wherein evidence of the larceny, the receiving of the stolen property by defendant, and finding of it in defendant's possession was by testimony of eyewitnesses, question of credibility of state's witnesses was for jury. SDC 34.3636.
Appeal from Circuit Court of Lawrence County; Hon. Alex Rentto, Judge.
Defendant was convicted of receiving stolen property and appeals.
Judgment affirmed.
Ralph A. Dunham, Atty. Gen., E.D. Barron and Walter Mueller, Asst. Attys. Gen., for Plaintiff and Respondent.
Parker Parker, Deadwood, for Defendant and Appellant.
The information filed in the circuit court charges Sid Houghton, defendant, with receiving personal property that had been stolen from another, knowing it to have been stolen, contrary to the provisions of SDC 13.3813. The jury found defendant guilty, sentence was imposed, and an application for a new trial was denied. Defendant appealed.
Appellant contends that the evidence is insufficient to prove the defendant's guilt beyond a reasonable doubt, not because the evidence if believed would fail to establish the offense charged, but because the state's witnesses were accomplices of defendant in the commission of the offense with which defendant was charged.
SDC 13.3813 provides that: "Every person who buys or receives in any manner upon any consideration any personal property of any value except as hereinafter provided, that has been stolen from another, knowing the same to have been stolen, is punishable by imprisonment in the State Penitentiary * * *."
[1, 2] The witnesses testifying for the state and upon whose testimony the sufficiency of the evidence depends were Leland Cutler and Eugene Carnes, who stole the property, and Jeanette Carnes, wife of the latter, who was present when it was stolen. Cutler and Carnes were convicted of stealing the property which defendant was charged with receiving from them. This court said in State v. Mosher, 46 S.D. 336, 192 N.W. 756, 757: "In this jurisdiction the crimes of larceny and of receiving stolen property are distinct offenses. Where such is the case, the weight of authority is to the effect that the thief is not an accomplice of the receiver of stolen property." Therefore the corroboration of these witnesses was not necessary under the provisions of SDC 34.3636.
The next contention of appellant is that the state's evidence is circumstantial. Some circumstancial evidence was introduced at the trial but the evidence of the larceny, the receiving of the stolen property by defendant, and the finding of it in defendant's possession was the testimony of eyewitesses. The question of the credibility of the state's witnesses was therefore one for the jury. State v. Sauter, 48 S.D. 409, 205 N.W. 25, 27.
Judgment affirmed.
All the Judges concur.