                                     No. 12430

          I N THE SUPREME COURT O THE STATE OF M N A A
                                 F              OTN

                                         1973



THE STATE OF MONTANA,

                              P l a i n t i f f and Respondent,

      -VS   -
HAROLD (SONNY) HOSKINS,

                              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 Second J u d i c i a l D i s t r i c t ,
                    Honorable James D. Freebourn, Judge p r e s i d i n g .

Counsel of Record:

    For A p p e l l a n t :

            John G. Winston argued, B u t t e , Montana

    F o r Respondent :

            Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
             Montana
            3 . C . Weingartner appeared, A s s i s t a n t A t t o r n e y General,
             Helena, Montana
            Lawrence S t i m a t z , County A t t o r n e y , B u t t e , Montana
            B r i a n T i e r n e y , Deputy County A t t o r n e y , a r g u e d , B u t t e ,
             Montana



                                                 Submitted:          September 28, 1973

                                                  Decided :       @T 1 6 ,@$?
Filed :    OCT 1 5 1
                   m
M . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e C o u r t .
 r

             Defendant was c o n v i c t e d of t h e c r i m i n a l s a l e of a

d a n g e r o u s d r u g by j u r y v e r d i c t i n t h e d i s t r i c t c o u r t of S i l v e r

Bow County b e f o r e t h e Hon. James D . F r e e b o u r n , d i s t r i c t judge.

Judgment was e n t e r e d t h e r e o n and d e f e n d a n t was s e n t e n c e d t o a

t e r m of t e n y e a r s i n t h e s t a t e p r i s o n .        F o l l o w i n g d e n i a l of h i s
motion f o r a new t r i a l , d e f e n d a n t a p p e a l e d from t h e judgment of

conviction.

             The u n d e r l y i n g i s s u e upon a p p e a l i s t h e l e g a l s u f f i c i e n c y

of t h e i d e n t i f i c a t i o n o f d e f e n d a n t t o s u p p o r t t h e c o n v i c t i o n .

             Defendant Harold Douglas (Sonny) Hoskins was c h a r g e d
by i n f o r m a t i o n f i l e d i n t h e d i s t r i c t c o u r t w i t h t h e c r i m i n a l
s a l e of a d a n g e r o u s d r u g on J a n u a r y 21, 1972, a t a b o u t 9:30 p.m.

a t t h e Terminal Bar i n B u t t e , Montana.                     The b a s i s of t h e c h a r g e
was a n a l l e g e d s a l e o f o n e gram of h a s h i s h f o r $6.00 t o R o b e r t

E. L e e , a d e p u t i z e d undercover n a r c o t i c s a g e n t of t h e S i l v e r Bow

County s h e r i f f ' s o f f i c e .      Following d e f e n d a n t ' s p l e a of " n o t
g u i l t y " , t h e m a t t e r came on f o r j u r y t r i a l on September 20, 1972.

             The p r i n c i p a l w i t n e s s f o r t h e s t a t e w a s Robert E . Lee,

t h e undercover n a r c o t i c s agent.               H e t e s t i f i e d t o t h e s a l e and

i d e n t i f i e d defendant a s t h e seller.                H i s testimony i n d i c a t e d

t h a t h e had n o t p r e v i o u s l y known d e f e n d a n t , d i d n o t f i n d o u t

h i s name u n t i l l a t e r , and had n o t s e e n d e f e n d a n t t h e r e a f t e r un-

til t h e morning of t h e t r i a l when,                 h e saw him a l o n e i n t h e lobby

of t h e c o u r t h o u s e and i d e n t i f i e d him.         He testified that a t the

t i m e of s a l e d e f e n d a n t w a s wearing an o l i v e d r a b army f i e l d

j a c k e t , a p l a i d s h i r t of some k i n d , a c a s t o r b r a c e of some k i n d
on h i s a r m , and t h a t d e f e n d a n t w a s wearing s q u a r e - t y p e g l a s s e s
and had o n e o r two d a y ' s growth of b e a r d .

             L e e t e s t i f i e d t h a t on t h e e v e n i n g f o l l o w i n g t h e s a l e h e
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 corrobor-
ated by Josephine Antonich, a physical therapist employed by
Dr. Davidson.
         Other testimony presented by defendant tended to indi-
cate 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 defend-
ant.
         The thrust of defendant's contention is that the testi-
mony 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 court-
room 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 identifi-
cation of defendant in the lobby of the courthouse was corrobo-
rated 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
t h e f i n d i n g of t h e j u r y .     Accordingly, w e w i l l not d i s t u r b

t h e j u r y v e r d i c t on a p p e a l .   S t a t e v . B o u l d i n , 153 Mont. 2 7 6 ,

4 5 6 P.2d 830.

             The judgment o f t h e d i s t r i c t c o u r t i s a f f i r m e d .




                                                               Justice




   Hon. R . D. h c ~ h i i l i ~ d i s t r i c t
                                       s,
judge, s i t t i n g i n p l a c e of M r .
J u s t i c e J o h n Conway H a r r i s o n .
