No. 12430 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

THE STATE OF MONTANA, Plaintiff and Respondent,
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# - HAROLD (SONNY) HOSKINS, Defendant and Appellant.
Appeal from: District Court of the Second JudicialDistrict, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: John G. Winston argued, Butte, Montana ForRespondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana 3. C. Weingartner appeared, Assistant Attorney General,

Helena, Montana Lawrence Stimatz, CountyAttorney, Butte, Montana Brian Tierney, Deputy County Attorney, argued, Butte,

Montana

Submitted: September 28, 1973 Decided

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# 1mMr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant was convicted of the criminal saleof a dangerous drug by jury verdict inthedistrict court of Silver Bow County before the Hon. James D. Freebourn, districtjudge. Judgment was entered thereon and defendant was sentenced toa termof tenyears inthe stateprison. Following denial of his motion for a new trial, defendant appealed from thejudgment of conviction. The underlying issueupon appeal isthe legal sufficiency of the identificationof defendant tosupport the conviction. Defendant Harold Douglas (Sonny) Hoskins was charged by information filed inthe districtcourt with the criminal saleof a dangerous drug on January 21, 1972, atabout 9:30 p.m. atthe Terminal Bar inButte, Montana. The basis of the charge
was an alleged saleof one gram of hashish for $6.00 toRobert E. Lee, a deputized undercover narcotics agent of the Silver Bow County sheriff's office. Following defendant's plea of "not guilty", thematter came on forjury trialon September 20, 1972. The principal witness for the statewas Robert E. Lee, theundercover narcotics agent. He testified tothe saleand identifieddefendant asthe seller. Histestimony indicated thathe had not previously known defendant, did not find out hisname until later, and had not seen defendant thereafter until themorning of the trialwhen, he saw him alone inthe lobby of the courthouse and identified him. He testified that atthe timeof saledefendant waswearing an olivedrab army field jacket, a plaid shirtof some kind, a cast orbrace of some kind
on hisarm, and thatdefendant was wearing square-type glasses and had one or two day's growth of beard. Lee testified that on the evening following the salehewent to the home of Mark Jordan,a detectivewith the Silver Bow County sheriff's office,where he was shown severalmug 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 courthousewas 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 notmake 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 themilitary service some 2-1/2 or 3 yearspreviously. 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 dayof 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 sawhim. 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 salewith 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 deputymistook 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 defendantwas inconclusive and the case should not have gone to the jury. In analyzing the evidence in this case,we note the ultimate issue iswhether defendantwas 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 themug shot,and his physical resemblance to other individuals are simply factors bearing on the ultimate issue of identity. The undisputedtestimony 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 thatmade the sale of hashish to him: first,by personal confrontationat the time of sale; secondly,by themug 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 arematters for the jury to resolve. State v. Lagge, 143 Mont. 289, 388 P.2d 792; State
v. Warrick, 152Mont. 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 reasonabledoubt. 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 supportthe finding of thejury. Accordingly, we willnot disturb thejury verdict on appeal. Statev. Bouldin, 153Mont. 276, 456 P.2d 830. The judgment of the district court is affirmed.

Justice

Hon. R. D. hc~hiili~s, district judge, sittinginplace of Mr. Justice John Conway Harrison.