STATE v PEPPERLING
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No. 12773 I N THE SUPREME COURT O THE STATE OF M N A A F OTN 1974 THE STATE OF MONTANA, P l a i n t i f f and Respondent, -vs - RICHARD CLARENCE PEPPERLING, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C h a r l e s Luedke, Judge p r e s i d i n g . Counsel of Record: For Appellant: John L. Adams a r g u e d , B i l l i n g s , Montana F o r Respondent : Hon. Robert L. Woodahl, A t t o r n e y General, Helena, Montana Thomas A. Budewitz, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana Harold F. Hanser, County A t t o r n e y , B i l l i n g s , Montana C h a r l e s A. B r a d l e y , Deputy County A t t o r n e y , a r g u e d , B i l l i n g s , Montana Submitted : Decided : Filed : oc%$ 3 19'743 September 13, 1974 a@r 3 1974 2 J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. Mr. The d e f e n d a n t , R i c h a r d C l a r e n c e P e p p e r l i n g , was c o n v i c t e d o f t h e c r i m e of b u r g l a r y i n t h e f i r s t d e g r e e and s e n t e n c e d t o a t e r m o f f i f t e e n y e a r s i n t h e Montana S t a t e P r i s o n . From t h i s conviction, t h e defendant has appealed. The e v i d e n c e i n t r o d u c e d i n t h i s c a s e d i s c l o s e s t h a t on October 1 9 , 1972, sometime between t h e h o u r s of 10:30 p.m. 1 1 : O O p.m., and t h e a p a r t m e n t b e l o n g i n g t o M r . and M r s . W i l l i a m Gross was burglarized. The a p a r t m e n t was e n t e r e d by someone who had opened t h e k i t c h e n window w h i l e s t a n d i n g on a n o l d c a r a x l e and r i m t h a t was l o c a t e d b e n e a t h t h e window. Gross i s t h e owner of t h e Rimrock Tavern i n B i l l i n g s , Montana. ment. The t a v e r n i s l o c a t e d d i r e c t l y i n f r o n t o f h i s a p a r t - On t h e n i g h t o f t h e c r i m e , Gross r e t u r n e d t o h i s a p a r t m e n t from t h e t a v e r n a t a b o u t 1 1 : O O p.m. and d i s c o v e r e d t h a t t h e m a t t r e s s i n h i s bedroom had been shoved t o one s i d e , h i s d r e s s e r drawer had been opened, and t h e c o n t e n t s o f h i s bedroom c l o s e t had been s c a t t e r e d t h r o u g h o u t h i s bedroom. Gross r e t i r e d f o r t h e n i g h t t h i n k i n g t h a t h i s w i f e had c a u s e d t h e d i s r u p t i o n . When Gross a r o s e t h e f o l l o w i n g morning, he n o t i c e d t h a t h i s k i t c h e n window had been opened and t h a t a c o n s i d e r a b l e amount of money hidden i n t h e bedroom had been s t o l e n . The money had been l o c a t e d i n a d r e s s e r drawer and i n a c l o t h e s hamper t h a t had been p l a c e d i n t h e bedroom c l o s e t . During t h e t r i a l , Gross t e s t i f i e d t h a t a p p r o x i m a t e l y $9,500 i n paper c u r r e n c y , $2,000 i n pre-1965 s i l v e r c o i n s , and a r o l l and a h a l f of I n d i a n head p e n n i e s had been t a k e n . In- c l u d e d i n t h e p a p e r c u r r e n c y , were s i x t y o r s e v e n t y one-hundred d o l l a r b i l l s t h a t were i n " r e a l f i n e c o n d i t i o n v - - p r a c t i c a l l y u n c i r c u l a t e d ; a t l e a s t f i f t e e n f i f t y d o l l a r b i l l s ; and a p p r o x i m a t e l y $3,000 i n twenty d o l l a r b i l l s . An o l d f i f t y - c e n t p i e c e with a chip on its corner, making it identifiable, had also been taken. The roll of Indian head pennies also had peculiar dates that Gross could recall. On October 20, 1972, the day after the crime had been committed, the defendant left the Billings area by bus and traveled to Denver, Las Vegas, and Portland, Oregon where he was arrested for parole violation on October 29, 1972. At the time of his arrest, the defendant was carrying $4,011.83, which included eighteen one-hundred dollar bills, eighteen fifty dollar bills, sixty-five twenty dollar bills, in addition to other bills of smaller denominations. The defendant was also carrying seventy- nine Indian head pennies and three fifty cent pieces, one of which contained a chip on its corner. A watch and a ring were also found. The appellant was arrested in Portland, Oregon nine days after leaving Billings. He was an immediate suspect when the burglary was discovered and when law officers contacted his parole officer on October 20, it was learned that he had left the state without permission and was therefore in violation of his parole. Law officials in the western states were notified, mug shots were circulated, resulting in an unusually fine job of police work by officers of the Portland, Oregon department. Two policemen in a patrol car were driving down a street on the night of October 29 and one of them looked into a lighted telephone booth where he recognized appellant from a mug shot shown at the department. The two officers went back and questioned appellant as to his identity. He gave a false name, denied he was Pepperling, denied he was wanted and it was not until his identification was made through fingerprints sent to the Federal Bureau of Investigation that he finally admitted his identity. This very denial, under the circumstances,was a factor properly considered by the jury. During t h e t r i a l , Gross s t a t e d t h a t t h e o l d f i f t y c e n t p i e c e r e c o v e r e d from t h e d e f e n d a n t looked f a m i l i a r b e c a u s e of i t s chipped corner. H e was u n a b l e t o i d e n t i f y t h e 1 n d i a n head p e n n i e s from marks o r o t h e r c h a r a c t e r i s t i c s , b u t s t a t e d t h a t t h e d a t e s on t h e p e n n i e s found i n d e f e n d a n t ' s p o s s e s s i o n c o r r e s ponded somewhat w i t h t h e p e n n i e s t h a t had been t a k e n from h i s apartment. Gross had n o t r e c o r d e d t h e s e r i a l numbers on t h e paper currency. C o n s e q u e n t l y , he c o u l d o n l y i d e n t i f y t h e one- hundred d o l l a r b i l l s from t h e i r c o n d i t i o n - - t h e y were a l l i n v e r y good, a l m o s t u n c i r c u l a t e d c o n d i t i o n . Mrs. /Gross t e s t i f i e d t h a t no o n e , i n c l u d i n g h e r own c h i l d r e n , had been informed t h a t t h e money had been h i d d e n i n t h e bedroom. However, t h e e v i d e n c e d i s c l o s e d t h a t a b o u t two weeks p r i o r t o t h e b u r g l a r y , M r . Gross had a g r e e d t o l e n d t h e d e f e n d a n t twenty d o l l a r s and had t a k e n him t o t h e a p a r t m e n t t o s e c u r e t h e money. While t h e d e f e n d a n t remained i n t h e d i n i n g room, Gross e n t e r e d t h e bedroom and t o o k t w e n t y d o l l a r s from i t s h i d i n g p l a c e i n t h e closet. The r e c o r d i s b a r r e n of any c l e a r t e s t i m o n y t h a t t h e d e f e n d a n t a c t u a l l y saw Gross remove t h e money from t h e c l o s e t . However, t h e r e i s no d o u b t t h a t t h e d e f e n d a n t w i t n e s s e d Gross r e t u r n from t h e bedroom w i t h t h e money. During t h e t r i a l , e v i d e n c e was a l s o b r o u g h t f o r t h t h a t t h e d e f e n d a n t had e a r n e d a p p r o x i m a t e l y $900 i n wages d u r i n g t h e t h r e e months immediately p r e c e d i n g t h e b u r g l a r y and had s p e n t a p p r o x i m a t e l y $300 of t h a t money f o r food and l o d g i n g . A l l o f t h e money found i n t h e d e f e n d a n t ' s p o s s e s s i o n a t t h e t i m e of t h e a r r e s t and t h e watch and t h e r i n g were a d m i t t e d i n t o evidence over defense c o u n s e l ' s o b j e c t i o n s . The d e f e n d a n t h a s r a i s e d t h r e e i s s u e s i n t h i s a p p e a l which w i l l be c o n s i d e r e d i n t h e o r d e r s e t o u t below: 1. Was t h e e v i d e n c e s u f f i c i e n t t o s u s t a i n t h e b u r g l a r y conviction? 2. Was the money found in the defendant's possession properly identified as the money taken in the burglary so as to allow its admission into evidence? 3. Did the district court commit reversible error in allowing the watch and the ring to be admitted into evidence? In relation to the first issue, the defendant argues that the State has failed to prove an essential element in the crime of burglary, namely, that the defendant had made an entry into the burglarized premises. At the time this crime was committed, section 94-901, R.C.M. 1947, was in effect. This statute reads: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, motor vehicle and aircraft, vessel, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary." , This Court in State v. Kinghorn, 109 Mont. 22, 93 P.,;,k 964, held in a burglary case that t'i while mere possession of recently stolen property during the commission of a burglary does not raise a presumption of guilt as a matter of law, where it is accompanied by other incriminating circumstances, and false or unreasonable explanation, it is sufficient to carry the case to the jury and support conviction; in applying the rule that inference of guilt because of possession decreases in proportion to the lapse of time from the taking to its finding, the further rule must be applied that each case must rest largely upon the surrounding circumstances, the matter resting in the discretion of the court. It is well established in Montana that the mere possession of stolen property, by itself, is insufficient to justify a conviction of burglary. If the State establishes the corpus d e l e c t i of b u r g l a r y and a l s o p r o v e s t h a t t h e d e f e n d a n t was i n e x c l u s i v e p o s s e s s i o n of t h e s t o l e n a r t i c l e s s h o r t l y a f t e r t h e b u r g l a r y had o c c u r r e d , a p e r m i s s i b l e i n f e r e n c e t h a t t h e def e n d a n t had committed t h e b u r g l a r y would a r i s e , even though d i r e c t e v i d e n c e of t h e e n t r y by t h e d e f e n d a n t was n o n e x i s t e n t . However, t h e f a c t of p o s s e s s i o n must be c o r r o b o r a t e d by o t h e r incriminating circumstances i n order t o j u s t i f y t h e g u i l t y verdict. S t a t e v . S p a r k s , 4 0 Mont. 82, 105 P. 87; S t a t e v. Gray, 152 Mont. 1 4 5 , 447 P.2d 475; S t a t e v . Kinghorn, s u p r a ; S t a t e v . P r o c t o r , 153 Mont. 90, 454 P.2d 616; S t a t e v . Deeds, 126 Mont. 38, 243 P.2d 314 and 2 W h a r t o n ' s C r i m i n a l Law and P r o c e d u r e , Section 4 1 1 (1957). Here, t h e S t a t e d i d n o t p r e d i c a t e i t s e n t i r e c a s e upon t h e i s o l a t e d f a c t of p o s s e s s i o n . I t went much f u r t h e r t o e s - t a b l i s h t h e following corroborating f a c t s : 1. The f a c t t h a t d u r i n g t h e t h r e e months i m m e d i a t e l y p r i o r t o t h e b u r g l a r y , t h e d e f e n d a n t had o n l y e a r n e d $900 and had s p e n t a p p r o x i m a t e l y $300 of t h a t money f o r food and l o d g i n g . When t h e p r e c e d i n g f a c t i s c o u p l e d w i t h t h e f a c t t h a t t h e def e n d a n t was found t o have $4011.83 i n h i s p o s s e s s i o n a t t h e t i m e o f h i s a r r e s t , a n o t h e r i n f e r e n c e of g u i l t a r i s e s . On t h i s p o i n t , i n 1 Wigmore on Evidence, 5 154 ( 3 r d E d . ) , i t i s s t a t e d : "Another mode, however, of making t h e f a c t of money-possession r e l e v a n t i s t o show i t s sudden o s s e s s i o n , i . e . t o show t h a t b e f o r e t h e t i m e z f t a k i n g t h e p e r s o n was w i t h o u t money, w h i l e immediately a f t e r t h a t t i m e h e had a g r e a t d e a l ; t h i s reduces t h e hypotheses t o such a s involve sudden a c q u i s i t i o n , and a d i s h o n e s t a c q u i s i t i o n t h u s becomes a n a t u r a l and prominent h y p o t h e s i s . On s u c h c o n d i t i o n s t h e p o s s e s s i o n o f u n i d e n t i f i e d money becomes r e l e v a n t . " 2. The f a c t t h a t t h e d e f e n d a n t l e f t t h e B i l l i n g s a r e a and Montana, i n v i o l a t i o n of h i s p a r o l e , on t h e day a f t e r t h e c r i m e had been committed i s a n o t h e r c o r r o b o r a t i n g f a c t . This Court has stated that " * * * if the jury are satisfied that the crime charged in the information has been committed by someone, then they may take into consideration any testimony showing, or tending to show, flight or concealment by the defendant, in determining whether the defendant is the party guilty of the offense 237, 252, 92 P. 566. * * *." See also: State v. Paisley, 36 Mont. State v. Walker, 148 Mont. 216, 419 P.2d 300 and State v. Bonning, 60 Mont. 362, 199 P. 274. 3. Still another corroborating fact is that the undis- puted testimony of both Mr. and Mrs. Gross had revealed that no one had been informed that money had been hidden in the bedroom closet. When the preceding fact is combined with the defendant's knowledge that Gross went to the bedroom to get money to loan him, an inference of knowledge of where the money was located and an inference of guilt when that money was found missing, arises. In California the defendant's familiarity with the burglarized premises may be considered by the jury in a burglary prosecution. People v. Goodall, 104 C.A.2d 242, 231 P.2d 119; People v. Mercer, 103 C.A.2d 782, 230 P.2d 4; and People v. Bennett, 93 C.A.2d 549, 209 P.2d 417. Furthermore, the defendant's knowledge as to where the stolen goods were concealed is a material circumstance to be considered in determining guilt. People v. Cooper, 81 C.A.2d 110, 183 P.2d 67. In reviewing the jury's verdict in a criminal matter when it has been alleged that the evidence is insufficient to support the verdict, the function of this Court is to determine if the verdict is supported by substantial evidence. We will not dis- turb a verdict based upon substantial evidence. State v. Bouldin, 153 Mont. 276, 456 P.2d 830; State v. Kendrick, 127 Mont. 403, 265 P.2d 201; State v. Curtiss, 114 Mont. 232, 135 P.2d 361. We hold that the corroborating circumstances are sufficient, when combined with the incriminating fact of possession,, to uphold the verdict of the jury. In relation to the second issue, the defendant argues that the money was insufficiently identified to allow its admission into evidence. We disagree. In Proctor, a considerable amount of money, including ten rolls of fifty cent pieces had been stolen in a burglary. The coins were identified by the peculiar manner in which they had been rolled. This Court held that a positive identification had been made and cited State v. Wilroy, 150 Mont. 255, 434 P.2d 138, for the proposition that the " * * * lack of positive ident- ification goes to the weight of the evidence, rather than to its admissibility." Utah In State v. Manger, 7 /.2d 1, 315 P.2d 976, a Utah case, the court held that a positive identification of money had been made since the money found on the defendant and the money stolen corresponded in a fairly close way and there was evidence showing that the defendant did not have a considerable sum of money immediately prior to the burglary. The same situation exists in the present case. In People v. Chapin, 145 C.A.2d 740, 747, 303 P.2d 365, the California court stated: "While, of course, it is impossible to identify currency (unless the numbers are known), the similarity in the size of the bills in the possession of defendant with those of the victim, harticularly large bills which generally are not carried, is significant. ' * * * although the fact that defendant used "money of the same kind as that which was recently stolen" ordinarily would constitute but slight evidence of the guilt of defendant, nevertheless, if such money was of a kind "rarely seen in circulation," the weight to be attached to such evidence is considerably increased * * * . ' " In People v. Brumback, 152 C.A.2d 386, 314 P.2d 98, the California court applied the preceding rationale to the introduction of six one-hundred dollar bills into evidence. In the present case, the money stolen consisted of several one-hundred dollar bills that were in uncirculated condition, at least fifteen fifty dollar bills, a roll and a half of Indian head pennies, and a fifty cent piece with a chip on its corner, among other paper currency and small change. The money found in the defendant's possession corresponded in a close and peculiar way. Remembering the rule in Wilroy and Proctor that the "lack of positive identification goes to the weight of the evidence rather than to its admissibility", we are satisfied that the money had been properly admitted into evidence. In relation to the third issue, the defendant argues that the court erred in admitting the watch and the ring into evidence because by so doing, an inference was raised that the items had been stolen. We find no merit in this contention because a receipt showing that they had been purchased in Las Vegas was also admitted into evidence. Consequently, the watch and the ring were not admitted for the purpose of showing that they had been stolen but to show that the defendant's pecuniary condition had changed subsequent to the alleged burglary. For the foregoing reasons, the judgment of conviction is affirmed. We concur: .'; / .-c2- *" -' .- --k-- Chief Justice 7 4 --k-- /" - --?%eiSf- Justices - 9 -
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