Lees, C.
Robert E. Green and Stanley Rohweter were jointly indicted upon a charge of grand larceny in the first degree. Rohweter, who had been admitted to bail, failed to appear for trial and his bail was forfeited. Green was tried, found guilty, and appealed from a denial of a new trial and from the judgment of conviction. A reversal is sought on the ground that the evidence does not support the verdict.
The indictment described the property stolen as United States bonds amounting to $1,000 and $500 in money belonging to Even Sathre. Sathre was an old man living with his wife and children on a farm about 17 miles east of Fergus Falls. During the afternoon of October 20, 1920, Green, Rohweter and another man drove to Sathre’s house, borrowed a boat, and went fishing on a lake nearby. An hour or two later the three men returned to the house and Green entered the kitchen where Sathre was alone and entered into conversation with him, asking him to buy stock in a packing company in Fergus Falls, which Green was selling. He had sold some of the stock to Sathre before and the packing company was marketing additional stock. Sathre was entitled to five shares, but did not want it, and Green had him sign a relinquishment of his right to this stock. Green testified that the conversation lasted so [129] long that his companions came to the door to see what was keeping him, and he asked them to come in. Sathre testified that Green advised him to sell his liberty bonds and buy stock with the money, that he asked where the bonds were kept and was told that they were in a box in the house, and that the three men were in the kitchen at this time.
After some further conversation, Green said he wanted to buy some eggs and gave Sathre a ten dollar bill to pay for three dozen. Sathre went to his desk in an adjoining room, took out a tin box, got out change for the bill and returned to the kitchen, where Green and his companions had remained. The box contained liberty bonds amounting to $1,000, $100 in savings stamps, about $500 in money, a certificate of deposit on a local bank for $1,600, and a number of stock certificates. The door between the kitchen and the adjoining room was open and the three men could see Sathre when he took the box from his desk and counted out the money to make change. A little later they left the house and drove back to Fergus Falls, where they lived. The car in which they came was owned by the packing company, but Green used it in going about the country to sell stock.
On the night of the twenty-first the members of the Sathre family retired shortly before 9 o’clock. Mrs. Sathre, who occupied a downstairs bedroom with one of her daughters, testified that after she fell asleep she was aroused by a sound at the desk where the box was kept. Through the open door of her bedroom she saw a light from a match or flashlight and a man reaching for the box in the desk. Immediately thereafter the man left hurriedly through the kitchen door. It was the custom of the family to leave the outer doors of the house unlocked. Mrs. Sathre gave the alarm. Her husband went to the desk and found that the box had been taken.
Three of his sons were at home that night. It had rained heavily in the afternoon. On going outdoors, the young men discovered the footprints of a man leading from the public highway to the house. On reaching the highway, the tracks of an automobile were seen and indicated that the car had come from the west, turned around in the road and gone back in the direction from which it had [130] come. Two of the young men followed in their own car. For two or three miles the road was muddy and the tracks plainly visible. The road then came to a graveled highway leading to Fergus Falls. The tracks showed that the car they were following had turned to the west on this highway, where they could no longer be discerned on account of its hard surface. It was testified that the prints of the tires were plain and distinct. Sathre’s sons described them and so did the rural mail carrier, who examined them the following day. Two days after the crime was committed, Sathre’s sons, accompanied by the county attorney, examined the Ford car Green drove and found it equipped with tires which would make prints in the road corresponding with those examined at the time of the theft.
Green, Rohweter and the man who was with them at Sathre’s house, were arrested. At the preliminary hearing, the third man was discharged and the other two bound over to the grand jury. At the December term of court the case was continued until May, when Green was tried. He produced evidence that he was in Fergus Falls from 6 p. m. until after 10 p. m. oh October 21.
The state adopted the theory, upon which the case was submitted to the jury, that Rohweter drove or was driven in Green’s car to the Sathre house and committed the larceny; that Green aided and abetted him and was answerable as a principal under section 8477, G. S. 1913; that Green and Rohweter visited Sathre’s house the day before the theft to ascertain where Sathre kept his valuables; that the purchase of eggs was made in order to get this information; that Green’s inquiry as to where the bonds were kept was made for the same purpose; that Green kept away when the box was stolen for fear that he might be recognized by the Sathres, who knew him but did not know Rohweter.
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Lees, C.
Robert E. Green and Stanley Rohweter were jointly indicted upon a charge of grand larceny in the first degree. Rohweter, who had been admitted to bail, failed to appear for trial and his bail was forfeited. Green was tried, found guilty, and appealed from a denial of a new trial and from the judgment of conviction. A reversal is sought on the ground that the evidence does not support the verdict.
The indictment described the property stolen as United States bonds amounting to $1,000 and $500 in money belonging to Even Sathre. Sathre was an old man living with his wife and children on a farm about 17 miles east of Fergus Falls. During the afternoon of October 20, 1920, Green, Rohweter and another man drove to Sathre’s house, borrowed a boat, and went fishing on a lake nearby. An hour or two later the three men returned to the house and Green entered the kitchen where Sathre was alone and entered into conversation with him, asking him to buy stock in a packing company in Fergus Falls, which Green was selling. He had sold some of the stock to Sathre before and the packing company was marketing additional stock. Sathre was entitled to five shares, but did not want it, and Green had him sign a relinquishment of his right to this stock. Green testified that the conversation lasted so [129] long that his companions came to the door to see what was keeping him, and he asked them to come in. Sathre testified that Green advised him to sell his liberty bonds and buy stock with the money, that he asked where the bonds were kept and was told that they were in a box in the house, and that the three men were in the kitchen at this time.
After some further conversation, Green said he wanted to buy some eggs and gave Sathre a ten dollar bill to pay for three dozen. Sathre went to his desk in an adjoining room, took out a tin box, got out change for the bill and returned to the kitchen, where Green and his companions had remained. The box contained liberty bonds amounting to $1,000, $100 in savings stamps, about $500 in money, a certificate of deposit on a local bank for $1,600, and a number of stock certificates. The door between the kitchen and the adjoining room was open and the three men could see Sathre when he took the box from his desk and counted out the money to make change. A little later they left the house and drove back to Fergus Falls, where they lived. The car in which they came was owned by the packing company, but Green used it in going about the country to sell stock.
On the night of the twenty-first the members of the Sathre family retired shortly before 9 o’clock. Mrs. Sathre, who occupied a downstairs bedroom with one of her daughters, testified that after she fell asleep she was aroused by a sound at the desk where the box was kept. Through the open door of her bedroom she saw a light from a match or flashlight and a man reaching for the box in the desk. Immediately thereafter the man left hurriedly through the kitchen door. It was the custom of the family to leave the outer doors of the house unlocked. Mrs. Sathre gave the alarm. Her husband went to the desk and found that the box had been taken.
Three of his sons were at home that night. It had rained heavily in the afternoon. On going outdoors, the young men discovered the footprints of a man leading from the public highway to the house. On reaching the highway, the tracks of an automobile were seen and indicated that the car had come from the west, turned around in the road and gone back in the direction from which it had [130] come. Two of the young men followed in their own car. For two or three miles the road was muddy and the tracks plainly visible. The road then came to a graveled highway leading to Fergus Falls. The tracks showed that the car they were following had turned to the west on this highway, where they could no longer be discerned on account of its hard surface. It was testified that the prints of the tires were plain and distinct. Sathre’s sons described them and so did the rural mail carrier, who examined them the following day. Two days after the crime was committed, Sathre’s sons, accompanied by the county attorney, examined the Ford car Green drove and found it equipped with tires which would make prints in the road corresponding with those examined at the time of the theft.
Green, Rohweter and the man who was with them at Sathre’s house, were arrested. At the preliminary hearing, the third man was discharged and the other two bound over to the grand jury. At the December term of court the case was continued until May, when Green was tried. He produced evidence that he was in Fergus Falls from 6 p. m. until after 10 p. m. oh October 21.
The state adopted the theory, upon which the case was submitted to the jury, that Rohweter drove or was driven in Green’s car to the Sathre house and committed the larceny; that Green aided and abetted him and was answerable as a principal under section 8477, G. S. 1913; that Green and Rohweter visited Sathre’s house the day before the theft to ascertain where Sathre kept his valuables; that the purchase of eggs was made in order to get this information; that Green’s inquiry as to where the bonds were kept was made for the same purpose; that Green kept away when the box was stolen for fear that he might be recognized by the Sathres, who knew him but did not know Rohweter.
Rohweter was a baker employed at the Kaddatz Hotel in Fergus Falls. Green was a single man and had lived at the hotel for about three years. On the afternoon of October 21, Green, Rohweter and two other men drove out from Fergus Falls in Green’s car on a hunting expedition. They were drenched by the rain and returned about 6 o’clock. In rainy weather Green kept his car in a garage near the hotel. The door to the garage could not be closed. Green [131] left his car there when he returned from the hunting trip and found it there the next morning. He admitted that the car was equipped with tires which would make prints corresponding with those described by the Sathre boys with this exception. They testified that the print of the letter B was made by one of the rear tires. In Green’s behalf, it was testified that the letters B and C on the bearing surface and the letter L on either side of one of the rear tires, were equally prominent. The Sathre boys testified that they observed only the imprint of the letter B made by this tire. Green was asked where Rohweter was at the time of the trial, and answered that he did not know and that he had not seen him for five or six weeks. He admitted that in St. Paul, in 1919, he had been convicted of a crime and paid a fine of $100. He explained the purchase of eggs by testifying that he was courting a young woman at Fergus Falls, whom he married later, and that when driving about the country he was in the habit of buying things from farmers and presenting them to her family. There was testimony to the fact that Sathre had always kept his money and securities in his house and made no attempt to conceal them. The proprietor of the Kaddatz Hotel and a young woman employed there testified that they saw Rohweter at the hotel between 8 and 8:15 p. m. on October 21. At the time of the trial, a boy of 17, whom defendant had expected to call as a witness, had the smallpox and was in quarantine. Defendant’s attorney made an affidavit for a continuance, stating that the boy would testify that he saw Rohweter asleep in his room in the hotel a few minutes before 9 p. m. on October 21. A continuance was denied and the affidavit read to the jury in lieu of the testimony. No trace of the stolen property has ever been found.
The foregoing is a bare outline of the salient features of the evidence from which we are to determine whether the trial judge was justified in allowing the verdict to stand. In denying a new trial he said that the jury had a right to feel convinced to a moral certainty that Green’s automobile was used to convey the actual perpetrators of the crime to and from Sathre’s house; that the box was taken by one of Green’s companions on the visit made on the previous day, and that the circumstances surrounding the visit, the man[132] ner in which the crime was committed by at least one of the three visitors, and the nse of Green’s car, are difficult to explain on any other reasonable hypothesis than that the visit was planned to look the ground over and facilitate the actual perpetration of the larceny. The case was submitted to the jury in a charge to which no exception was taken.
There is nothing but circumstantial evidence in the case upon which to base a conviction. Such evidence, though not strong, may support a verdict approved by the trial court. State v. O’Hagan, 124 Minn. 58, 144 N. W. 410; State v. Ryan, 137 Minn. 78, 162 N. W. 893. The principle under which a comparison of footprints near the scene of a crime with the footwear of the accused is permitted is equally applicable to the prints of the tires of an automobile to establish its identity. The corpus delicti was proved beyond a doubt, and herein the case differs from State v. McLarne, 128 Minn. 163, 150 N. W. 787, and State v. Jacobson, 130 Minn. 347, 153 N. W. 845, where the circumstantial evidence was held insufficient to prove guilt. Rohweter’s failure to appear for trial was an important circumstance tending to establish his guilt. State v. Nelson, 91 Minn. 143, 97 N. W. 652; State v. Maddaus, 137 Minn. 249, 163 N. W. 507. His presence in Sathre’s house at Green’s invitation, when the old man revealed the place where he kept the box, is significant. He had no. business to transact, was a stranger to Sathre, and there was no occasion for his presence unless Green wanted him to see where Sathre kept his money.
After careful consideration of all the circumstances, the conclusion has been reached that the verdict, having received the approval of the trial judge, ought not to be disturbed.
Error in permitting the witness Edwin Sathre to testify to the kind of tires that made the imprints in the road is assigned, the point being that a sufficient foundation for his testimony was not laid. It is largely within the discretion of the trial court to determine whether a sufficient foundation has been laid to permit.a witness to state a conclusion. Clarke v. Philadelphia & R. C. & I. Co. 92 Minn. 418, 100 N. .W 231; In re Estate of Olson v. Johnson, 148 Minn. 122, 180 N. W. 1009, 181 N. W. 569. The witness showed [133] sufficient familiarity with the subject to justify the court in permitting him to. give the testimony objected to.
Order and judgment affirmed.