No. 85-548 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsPATRICK CAIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Mansch, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Richard A. Simonton, County Attorney, Glendive, 

Montana; Marvin L. Howe, Deputy County Attorney 

Submitted on Briefs: March 21, 1986 

Decided: May 15, 1986 

Filed. .MAY I t 1386 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant, Patrick Cain, appeals his conviction of the 

offense of theft following a jury trial in the Seventh Judicial District Court, County of Dawson. We affirm the 

conviction. 

On November 15, 1984, defendant and Burl Keith Hunter 

were arrested and charged with the theft of approximately 

$19,000 worth of drilling bits from Security Bits of 

Glendive, Montana. Hunter pled guilty. Cain pled not 

guilty, claiming that he was unaware of any criminal 

wrongdoing. 

Hunter was the state's key witness at Cain's trial. He 

testified that he had known defendant for three or four 

years. He came to Miles City in November of 1984 to visit 

with defendant and to "party". While in Miles City, Hunter 

drove a three-quarter ton Ford pickup truck belonging to 

Eastman Whipstock, an oil field company located in Casper, 

Wyoming. 

Hunter further testified that on November 7, 1984, after 

drinking heavily, he and Cain attempted to steal some drilling bits from various drilling rigs. The plan failed. The 

next day the two went to Glendive, Montana, called Security 

Bits and arranged to meet its representative at the shop in 

order to procure some bits. 

Allan Swenson, sales manager for Security Bits, was out 

of town for the weekend. Melvin McDanold had agreed to be 

"on call" for Swenson in the event someone wished to make a 

purchase from the shop. McDanold and a friend, Danny 

Grigsby, met Hunter and defendant at the shop. Hunter testified that he then "took charge". He told McDanold that his 

name was Wayne Harther, he worked for an oil company 

out-of-state and he needed to purchase certain drill bits. 
Eight bits were then selected and loaded into Hunter's truck. 

Hunter signed an invoice for the bits using his assumed name, 

Wayne Harther. Thereafter, according to Hunter, he and 

defendant went to Gettysburg, South Dakota, where they sold 

the eight drill bits for $1900. The money was divided equally between the two and they returned to Miles City. 

Other witnesses for the State substantiated most of 

Hunter's testimony. McDanold testified that a "Wayne 

Harther" (Hunter) had called November 8, 1984, and stated he 

worked at Coastal Oil and Gas and needed some drilling bits. 

Hunter and a second individual (defendant) met McDanold at 

the shop. Hunter introduced himself as Wayne Harther. 

McDanold was unsure whether defendant was present at the time 

of the introduction but was fairly certain defendant could 

have heard the introduction. Hunter was definitely in 

charge. Defendant was l1 just there". After the bits were 

located, Hunter signed the invoice as Wayne Harther and 

departed. 

Grigsby, McDanoldls friend who accompanied him to the 

shop, testified that he and defendant had primarily stood 

around and talked while Hunter and McDanold searched for the 

bits. Hunter appeared to be in charge. Grigsby also stated 

that he was unsure whether defendant had heard Hunter introduce himself as Harther as defendant might have still been in 

the truck. After Hunter stated he was from Casper, Grigsby 

inquired of defendant whether he knew some of Grigsby's 

friends in Casper. Defendant stated that he had just moved 

from Oklahoma. and did not know anyone. 

The remainder of the relevant testimony came from a law 

officer. Highway Patrolman Warren Schiffer testified that 

after stopping Hunter on November 10, 1984, for a speeding 

violation, he discovered the truck had been reported stolen 

by Eastman Whipstock. Hunter and defendant were both 
arrested. Defendant was subsequently released. At the time 

of arrest, Hunter had six $100 bills on his person and defendant had large bills totaling at least $250. 

At the close of the State's case-in-chief, defendant's 

attorney moved for a directed verdict on two grounds: 1) the 

State failed to prove its case beyond a reasonable doubt; and 

insufficient corroboration of the accomplice, Hunter 

testimony. The motion was denied and the trial continued. 

Defendant was convicted of theft and received an eight-year 

suspended sentence. 

On appeal, defendant raises the following issue: 

Whether the trial judge erred, pursuant to § 46-16-213, 

MCA, in denying defendant's motion for a directed verdict at 

the close of the State's case? 

Section 46-16-213, MCA, states: 

Testimony of person legally accountable. A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, 

as defined in 45-2-301, unless the testimony is 

corroborated by other evidence which in itself and 

without the aid of the testimony of the one responsible or legally accountable for the same offense 

tends to connect the defendant with the commission 

of the offense. The corroboration is not sufficient if it merely shows the commission of the 

offense or the circumstances thereof. 

Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence 

must show more than the fact that a crime was committed. It 

must raise more than a suspicion concerning defendant's 

involvement in the crime. However, it need not be sufficient, on its face, to support a prima facie case against 

defendant. State v. Kemp (19791, 182 Mont. 383, 386 - 3871 

597 P.2d 96, 99. The evidence need only "tend to connect" 

defendant with the crime. State v. Mitchell (Mont. 1981), 

the evidence may be circumstantial and it may come from the 
defendant or his witnesses. Kemp, 182 Mont. at 387, 597 P.2d 

at 99. 

Hunter's testimony implicating defendant was corroborated by testimony indicating that defendant knew Hunter was 

using an alias and testimony suggesting that defendant told 

Grigsby he was residing in Casper, Wyoming. Further, it is 

undisputed that defendant was at Security Bits at the time 

the bits were stolen. Finally, defendant was arrested with 

over $200 cash in his pocket on the road between South Dakota 

and Miles City two days after the theft. This is consistent 

with Hunter's testimony that he and defendant sold the drill 

bits in South Dakota for $1900 cash. 

The testimony against defendant is circumstantial. But, 

as a matter of law, it is not insufficient to corroborate the 

accomplice's testimony. The testimony might also be, as 

defendant contends, consistent with innocent conduct on the 

part of defendant. Defendant ' s mother might have provided 

him with money for a job-hunting expedition to South Dakota. 

Defendant might not have heard Hunter introduce himself as 

Wayne Harther. However, these are factual questions, properly resolved by the jury. State v. Anderson (1982), 197 Mont. 

374, 378, 643 P.2d 564, 566. The trial judge did not err 

when he refused to grant defendant's motion for a directed 

verdict. 

Affirmed. 

We concur: 

/y'j - / uw,. ghief Justice L