State v. Swenor

528 P.2d 671, 96 Idaho 327, 1974 Ida. LEXIS 444
CourtIdaho Supreme Court
DecidedNovember 18, 1974
Docket11250
StatusPublished
Cited by30 cases

This text of 528 P.2d 671 (State v. Swenor) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Swenor, 528 P.2d 671, 96 Idaho 327, 1974 Ida. LEXIS 444 (Idaho 1974).

Opinions

McFADDEN, Justice.

Patricia Swenor, the defendant-appellant, was charged with the crime of arson in the first degree. She was tried before a jury and found guilty. Prior to imposition of sentence, the defendant moved for a new trial which was denied by the trial court. Thereafter the trial court entered its judgment of conviction and imposed a three year sentence. However, the trial court suspended execution of the sentence and placed the defendant on probation for three years. The defendant has appealed from the judgment of conviction and from the order denying her motion for a new trial.

In her assignments of error, the defendant contends the evidence is insufficient to sustain her conviction, inasmuch as the principal witness against the defendant was an accomplice and there is insufficient corroborative evidence to sustain the conviction. I.C. § 19-2117.1 She contends the trial court should have granted her motion for a judgment of acquittal (I.C.R. 29) made at'the close of the state’s case; that the trial court should have granted her motion for a new trial (I.C.R. 33), and lastly that the trial court should have given her requested instructions nos. 1 and 5.

At the outset, disregarding for the moment the issue of corroborating evidence, there is sufficient competent evidence to sustain this conviction. About July 1, 1972, Mrs. Swenor and her husband leased a farmhouse from a Mr. and Mrs. Schneidmiller. Within the month after taking possession problems arose between the Swenors and their lessors concerning rent and failure of the Swenors to keep the house in a neat condition. The Schneidmillers had an eviction notice served on the [329]*329Swenors who left the premises during the first week in August, 1972. The Swenors and two children stayed three days with some friends, and then “camped out” near a river, awaiting the time they could occupy another place they had rented.

Verna LaFountain, the principal witness for the prosecution, testified that she had been friendly with the defendant, and while the two of them were driving around in Verna’s automobile, the defendant asked Verna to help her in a scheme to burn the Schneidmiller house. Verna testified that during the evening of August 12 and early morning hours of August 13, she drove the defendant to a field behind the house and let the defendant out. The defendant had previously put a Chevron gas can in Verna’s car. After the car stopped, the defendant stepped from the car, took the gas can and unsuccessfully tried to start the field on fire. After that, at defendant’s request, Verna then drove the defendant to the house, backed into the driveway leading to the garage, and the defendant left the car. The defendant again took the gas can with her and sprinkled gas on a mattress in the garage. Verna further testified she saw the defendant light a match, throw it on the mattress and then shut the garage door. They left, but later drove by the house and adjoining garage and saw it on fire.

Mrs. Swenor, the defendant, and two of her children testified that she had gone to bed on the evening in question and never participated in the activities described by Verna. However, the jury resolved this issue against the defendant, and at most, all that can be said is that a question of fact for resolution by t he jury was presented. State v. Darrah, 92 Idaho 25, 435 P.2d 914 (1968).

Concerning the issue as to whether there was sufficient corroborative evidence of Verna LaFountain’s testimony to sustain this conviction, t his court in State v. Gilbert, 65 Idaho 210, 142 P.2d 584 (1943), defined an “Accomplice” as

“ * * * a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission, or, not being present, has advised or encouraged its commission.” 65 Idaho at 215, 142 P.2d at 585.

See also, State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968); State v. Emmons, 94 Idaho 605, 495 P.2d 11 (1972); State v. Sensenig, 95 Idaho 218, 506 P.2d 115 (1973). Under this definition Verna La-Fountain was an accomplice. Under I.C. § 19-2117, to sustain this conviction her testimony must be corroborated by other evidence. In State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933), the court discussed the type of acceptable corroborative evidence as follows:

“The law merely requires that there must be corroboration of the testimony of the accomplice before a conviction can be had. (Section 19-2017, Idaho Code Annotated.) Under said section corroborating testimony need only tend to connect the defendant with the crime. It may be slight. (People v. McLean, 84 Cal. 480, 24 P. 32). And it need only go to one material fact. (State v. Knudtson, 11 Idaho 524, 83 P. 226.) And the corroboration may be entirely circumstantial. (State v. Gillum, 39 Idaho 457, 228 P. 334. See, also, State v. Orr, 53 Idaho, 452, 24 P.2d 679; State v. Whisler, 32 Idaho 520, 185 P. 845.)” 53 Idaho at 581, 26 P.2d at 133.

Continuing, at 53 Idaho 585-586, 26 P.2d 135, the court quoted from State v. Gillum, 39 Idaho 457, 228 P. 334 (1924), as follows:

“Where the circumstances point to the guilt of the accused, independent of the accomplice’s testimony, such circumstantial evidence may be a sufficient corroboration of the accomplice’s testimony to sustain a conviction. It is not necessary that the testimony of an accomplice be corroborated in every detail. Any cor[330]*330roborative evidence legitimately tending to connect the defendant with the commission of a crime may be sufficient to warrant a conviction, although standing by itself it would not be sufficient proof of defendant’s guilt.” 39 Idaho at 463, 464, 228 P. at 336.

It is our conclusion that there is sufficient corroborative evidence to sustain this conviction. The state in its case offered into evidence a gallon Chevron gasoline can, which was identified as being similar to the one used by the defendant. This gasoline can was taken from one of the Swenor’s vehicles by Larry Swenor and given to the officers by him. The contents of this can were examined by a laboratory technician who testified the fluid in it was identical to white gas obtained from a Chevron dealer used as a control sample.

Another of the state’s witnesses testified that Mrs. Swenor, after receiving the eviction notice, stated, “I’m going to burn the son of a bitch down,” referring to the Schneidmillers’ house. Moreover, the defendant admitted under direct examination that on the day they received the eviction notice she made such a statement, although she explained that it was said in a fit of temper. This statement, although its import was challenged by the defendant, can be considered corroborative evidence. Statements by a defendant have been accepted as corroborative evidence in other circumstances. State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933); State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966). Corroboration may be furnished by a defendant’s own words or conduct. People v. Teitelbaum, 163 Cal.App.2d 184, 329 P.2d 157 (1958); People v. Goldstein, 136 Cal.App.2d 778, 289 P.2d 581 (1955); People v.

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Bluebook (online)
528 P.2d 671, 96 Idaho 327, 1974 Ida. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swenor-idaho-1974.