No. 12430 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

HAROLD (SONNY) HOSKINS, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant : 

John G. Winston argued, Butte, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

3. C. Weingartner appeared, Assistant Attorney General, 

Helena, Montana 

Lawrence Stimatz, County Attorney, Butte, Montana 

Brian Tierney, Deputy County Attorney, argued, Butte, 

Montana 

Submitted: September 28, 1973 

Decided : @T 16 ?$@, 

Filed : OCT 1 5 1m 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant was convicted of the criminal sale of a 

dangerous drug by jury verdict in the district court of Silver 

Bow County before the Hon. James D. Freebourn, district judge. 

Judgment was entered thereon and defendant was sentenced to a 

term of ten years in the state prison. Following denial of his 

motion for a new trial, defendant appealed from the judgment of 

conviction. 

The underlying issue upon appeal is the legal sufficiency 

of the identification of defendant to support the conviction. 

Defendant Harold Douglas (Sonny) Hoskins was charged 

by information filed in the district court with the criminal 

sale of a dangerous drug on January 21, 1972, at about 9:30 p.m. 

at the Terminal Bar in Butte, Montana. The basis of the charge 

was an alleged sale of one gram of hashish for $6.00 to Robert 

E. Lee, a deputized undercover narcotics agent of the Silver Bow 

County sheriff's office. Following defendant's plea of "not 

guilty", the matter came on for jury trial on September 20, 1972. 

The principal witness for the state was Robert E. Lee, 

the undercover narcotics agent. He testified to the sale and 

identified defendant as the seller. His testimony indicated 

that he had not previously known defendant, did not find out 

his name until later, and had not seen defendant thereafter until the morning of the trial when, he saw him alone in the lobby 

of the courthouse and identified him. He testified that at the 

time of sale defendant was wearing an olive drab army field 

jacket, a plaid shirt of some kind, a cast or brace of some kind 

on his arm, and that defendant was wearing square-type glasses 

and had one or two day's growth of beard. 

Lee testified that on the evening following the sale he 
went to the home of Mark Jordan, a detective with the Silver 

Bow County sheriff's office, where he was shown several mug 

shots and identified defendant as the person who had sold the 

hashish to him. The mug shot had been taken some two years 

previously when defendant was substantially heavier and differed 

somewhat in physical appearance. 

Lee's testimony concerning defendant's identification 

by means of the mug shots was corroborated by Jack Walsh, a 

detective with the Silver Bow County sheriff's office, who was 

present at Jordan's house at the time of identification. Lee's 

testimony concerning identification of the defendant in the 

lobby of the courthouse was corcoborated by Mark Jordan. 

Defendant testified in substance that although he was 

present in the Terminal Bar at the time of the alleged sale, he 

did not make a sale to Lee or anyone else. He testified that 

he was not wearing an army type field jacket, that he did not 

have a cast or brace or anything resembling it on his arm, and 

that he was not wearing a plaid shirt. 

Defendant's testimony was corroborated by two friends, 

Joe Swan and Larry McAllister, who were with him in the Terminal 

Bar at the time of the alleged sale. Defendant's sister, Shirley 

Dawson, testified that defendant lived in her home, didn't own 

a plaid shirt, had no cast or brace on his arm, and had not worn 

an army type field jacket out of the house since his return from 

the military service some 2-1/2 or 3 years previously. This 

latter testimony covering the army type field jacket was disputed 

by Jack Walsh who had known the defendant since high school days! 

he testified he had seen him two or three times within a month 

prior to his arrest wearing a regular army fatigue jacket. 

Dr. John Davidson, an orthopedic surgeon from Butte, was 

called as a witness for defendant and testified that on the day 
of the alleged sale and on occasions immediately previous and 

subsequent thereto, he had been treating the defendant for a 

lower back injury and that defendant showed no evidence of 

injury to either arm and was not wearing a cast or similar 

device when he saw him. Dr. Davidson's testimony was corroborated by Josephine Antonich, a physical therapist employed by 

Dr. Davidson. 

Other testimony presented by defendant tended to indicate that it would have been difficult, if not impossible, for 

defendant to have been playing a game of "foosball" in the Bar 

at the time of the alleged sale with a cast on his arm because 

of the physical dexterity required; that an Indian by the name 

of "Sonny", the only name by which Lee knew the defendant at 

the time of the alleged sale, was in the bar at the same time; 

and that shortly before defendant's arrest, Mark Jordan and 

another sheriff's deputy mistook a third person for the defendant. 

The thrust of defendant's contention is that the testimony at the trial did not establish identification of defendant 

beyond a reasonable doubt and to a moral certainty, and because 

this standard of proof was not satisfied, the identification of 

the defendant was inconclusive and the case should not have gone 

to the jury. 

In analyzing the evidence in this case, we note the 

ultimate issue is whether defendant was the person who made the 

sale of one gram of hashish to Lee, the undercover narcotics 

agent. What clothing the defendant was wearing at that time, 

whether he had a cast or brace on his arm, any change in his 

physical appearance from the time of the mug shot, and his 

physical resemblance to other individuals are simply factors 

bearing on the ultimate issue of identity. The undisputed 
testimony shows his presence in the bar at the time of sale. 

There is no evidence that anyone in the bar at the time of 

sale bore any physical resemblance to him. Defendant admitted 

someone in the bar that night solicited him for a sale of hashish, 

but denies it was Lee or that he ever saw Lee there. Lee's 

testimony furnishes a positive identification of defendant as 

the man that made the sale of hashish to him: first, by personal 

confrontation at the time of sale; secondly, by the mug shot; 

third, in the lobby of the courthouse; and finally in the courtroom at the time of trial. Lee's identification of defendant by 

the mug shot the day following the sale was corroborated by Jack 

Walsh, a detective from the sheriff's office. Lee's identification of defendant in the lobby of the courthouse was corroborated by Mark Jordan, another detective from the sheriff's office. 

The conflicts in the evidence concerning defendant's 

clothing and the cast amount to no more than conflicts in the 

evidence to be resolved by the jury. State v. Steward, 151 

Mont. 551, 445 P.2d 741. The credibility of the witnesses and 

the weight to be given their testimony are matters for the jury 

to resolve. State v. Lagge, 143 Mont. 289, 388 P.2d 792; State 

v. Warrick, 152 Mont. 94, 446 P.2d 916. The jury could well 

have believed that Lee was mistaken about the .cast or brace or 

even about some of defendant's clothing, and still believed his 

identification of defendant by the mug shot and in person. There 

is nothing in the physical facts here that requires a different 

result. 

The jury found the evidence they believed to establish 

the identity of the defendant beyond a reasonable doubt. The 

trial judge, who observed the witnesses and heard their testimony 

in person, affirmed the jury verdict by his denial of defendant's 

motion for a new trial. We find substantial evidence to support 
the finding of the jury. Accordingly, we will not disturb 

the jury verdict on appeal. State v. Bouldin, 153 Mont. 276, 

456 P.2d 830. 

The judgment of the district court is affirmed. 

Justice 

Hon. R. D. hc~hiili~s, district 

judge, sitting in place of Mr. 

Justice John Conway Harrison.