Autman v. State , 126 Miss. 629 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

Appellant was indicted and convicted in the circuit court of Copiah county of the willful, unlawful and felonious receiving of goods of the value o thirty dollars stolen by his brother, York Autman, from the mercantile firm of Noble & Gibson, and sentenced to tbe penitentiary for a term of two years, from which judgment and sentence he appeals to this court.

The action of the court below in refusing three instructions, marked in the record Nos. 2, 3, and 4, requested on behalf of appellant, is assigned as error. Each of these instructions sought to inform the jury in varying language that proof beyond a reasonable doubt that appellant was found in possession of the stolen goods of the value of twenty-five dollars or more was no sort of presumption or evidence that he received all such goods at one time. Perhaps the questions for decision will more clearly appear if these refused instructions are copied in full. They here follow:

“No. 2. The court instructs the jury for the defendant, that the burden of proof is upon the state in this case to prove to you beyond a reasonable doubt every allegation in-the indictment necessary for a conviction, and the fact, if you believe beyond a reasonable doubt it is a fact, that the defendant had in his possession property stolen from the Noble store, of the value of more than twenty-five dollars then this fact is no sort of evidence that all of said goods of said value were received by the defendant at one time, and raises no legal presumption against the defendant that' all of said property was taken at one time. Therefore, the court, tells you that under no circumstances can the jury find the defendant guilty of receiving stolen goods feloniously.

“No. 3. The court instructs the jury for the defendant, that the fact, if you believe it to be a fact, that the defendant had in his possession property recently stolen, amounting in value to more than twenty-five dollars that this does not raise any sort of presumption that he received the property all at one time, and it is the sworn duty of the jury not to indulge in any such presumption.

“No. 4. The court instructs the jury for the defendant, that the fact, if you believe it to be a fact, that the defendant had in his possession property which had been feloniously taken from the store of Noble & Gibson, raises- no sort of presumption of the defendant’s guilt on the charge alleged in the indictment.”

It is not clear from the record, and probably not material, whether York Autman, the brother of appellant, had pleaded guilty to only the larceny of the goods found in possession of appellant, or to a charge of burglary, and larceny of said goods; but it seems it was the latter, for he stated in his testimony that he had pleaded guilty to the charge of going into Noble’s store and stealing these goods. It was not shown by the evidence whether the goods found in possession of appellant (which were of the value of sixty-four dollars were taken by his brother, York, at one time, or whether they were the aggregate; of several takings, and likewise there was an absence of evidence as to whether appellant received from his brother all the goods at one time, or they were the aggregate of several receipts. There was testimony, however, tending to show that, if it was a fact the goods found in appellant’s possession were the result of several different takings by his brother, York, and came into appellant’s possession in several different installments, still such takings by his brother and receipt by him constituted one continuing transaction; for York testified that he had a key to the store where he got the goods, and during a period of about three months — January, Feb-, ruary and March — he often went in the store and got what he wanted; from Avhich it may be reasonably inferred that each separate taking was the result of one design and all together constituí ed one continuing transaction. And several witnesses testified to a voluntary confession made by appellant after his arrest in which he stated, among other things, that he'knew his brother York was breaking into and stealing goods from the store of Noble & Gibson, and he tried to dissuade him therefrom; from which it may be reasonably inferred that, if appellant received the goods found in his possession at. different times, and in different quantities, it was a continuing transaction, and the result of one design on his part. It will be observed that the central idea embodied in each of the three instructions — -the refusal of which, by the court is complained of — is that the fact, although proven beyond a reasonable doubt, that appellant was found in possession of goods stolen by his brother York of the value of more than twenty-five dollars was no evidence or presumption whatever that he received them all at one time; and that, with no further evidence on that point, it would be the duty of the jury to acquit on the charge of grand larceny.

The rules of evidence governing in prosecutions for larceny and receiving stolen goods are very largely the same, because of the similarity in the nature and character of the two offenses; this is especially true of the value and weight of evidence showing possession by the accused of recently stolen goods. Scarver v. State, 53 Miss. 407, is relied on as supporting the contention on behalf of appellant. The two instructions given for the state in that case) and held erroneous by this court, were in the following language:

“(1) Although the articles may have been taken at different times, yet, if they were all taken by the defendant, and when thus accumulated the entire lot was retained and possessed by him, such detention and possession is a continued asportation of the entire lot.

“(2) The court instructs the jury that, where a person has different articles stolen from him, and such articles are all found in the possession of another person, the presumption is that they were all stolen at the same time, and by the person in whose possession they are found.”

The court said in reference to these instructions:

“The instructions given for the state (No. l and No. 2 in the record) are erroneous: the first because it announces that successive petit larcenies, when consolidated, constitute grand larceny, which is not true. It is true that, where there is one continuing transaction, the thief may be convicted of the'final carrying away, although there may have been several distinct asportations in the view of the laAv; but where there are successive larcenies, each complete and distinct, and not constituting one continuous transaction, the mere retention and possession by the thief of the fruits of his petit larcenies does not make him guilty of grand larceny.

“The second instruction is erroneous because there is no presumption that articles found in one’s possession were ‘all stolen at the same time,’ when the evidence shows that they were probably not all taken from the possession of the owner at one time, but at different times. Another objection to this instruction is that it does not embrace the idea that mere possession must be recent to raise a presumption of guilt; but this qualification is contained in another instruction directly on this subject, and that cures this omission.”

A brief review of the opinions of this court in some, other cases will throw light on what the court meant in the Scarver Case. In Stokes v. State, 58 Miss. 677, the court held erroneous an instruction for the state which told the jury that possession by the defendant of recently stolen goods, not satisfactorily explained, resulted in law in a presumption of guilt. The court, in commenting on this instruction, among other things said:

“Where unexplained by the party it becomes much more potent, and will of itself justify and support a verdict of guilty. Under no circumstances, however, does it ever attain to the dignity of a conclusive presumption of law which compels such verdict, but always remains a presumption or inference of fact from which guilt may, by the jury, be deduced. It is frequently spoken of, both by courts and text-writers, as a legal presumption, or presumptio juris; and, though the expression is inaccurate, it would not be deemed material or necessitate a reversal where, notwithstanding the error of nomenclature, the jury were still left free to exercise their own judgment as to whether it demonstrates guilt to their satisfaction; but where they are told that it is a conclusive presumption of law, upon which they mxist or should find the accused guilty, it is fatally erroneous. They may be told that it is a circumstance strongly indicative of guilt, and that it will justify, support, or warrant a verdict for the state; but they must still be left to decide whether, in fact, it does satisfy them of guilt beyond a reasonable doubt.

“Under no circumstances does the law make possession of stolen property conclusive proof of guilt, and deduce as a presumptio juris, et de jure, that the party in possession is the thief. This is a deduction which must be made by the jury, or not, as it satisfies their consciences; and, however strongly the one fact may seem to follow from the other, they cannot he told that they must infer it, or that the law infers it for them. Graves’ Case, 12 Wis. 591; Hall’s Case, 8 Ind. 440; Perry’s Case, 41 Tex. 483.

In Matthews v. State, 61 Miss. 155, in criticizing a like instruction for the state, Judge Cooper for the court said:

“It was error to instruct the jury that where property has been stolen, and is recently thereafter found in possession of a person, the law presumes him to be the person by whom it was stolen. The most that cán be said is that the ■fact of such possession may and ought to be considered by the jury in determining the question of guilt, and that, where no reasonable and satisfactory explanation is given of such possession, the jury may from it infer guilt. Stokes v. State, 58 Miss. 677.”

In Harper v. State, 71 Miss. 202, 13 So. 882, the court held that, while recent possession by the defendant of property burglariously stolen is a circumstance which may be considered, and from which, in the absence of a reasonable explanation, the jury are authorized to infer guilt, yet the law does not raise a presumption of guilt from such possession, and it is error to so instruct the jury for the state.

Snowden v. State, 62 Miss. 100, was a prosecution for grand larceny, the charge being that defendant stole four pieces of bacon and one shotgun of the value of more than, twenty-five dollars. Recently after the larceny the defendant was found in possession of only part of the stolen goods —two and one-half pieces of the meat. The court at the instance of the state gave the jury the following instruction :

“(4) Possession of recently stolen goods is presumptive evidence of guilt of larceny of the goods, and if the jury believe from the evidence in the cause, beyond all reasonable doubt, that the meat or any part of it charged in the indictment to have been stolen was at any time soon after its being stolen in the possession of defendant, then this possession is presumptive proof of defendant’s guilt as charged, and the burden of explaining or accounting for such pos session is cast upon the defendant, and unless satisfactory explanation is given by him the jury would be warranted in finding him guilty.”

This instruction was challenged on two grounds, viz.: That it authorized the jury to infer or presume from the evidence the theft by the defendant; and also that the value of the goods stolen was sufficient in amount to authorize a conviction of grand larceny. The court in its opinion responding to these objections, said:

“The fourth instruction given for the state, in speaking of the presumption arising from the recent possession of stolen goods, confounds the words ‘proof’ and ‘evidence,’ using both words interchangeably with the same meaning in the same sentence. Such use of the words is improper, though frequently adopted by the best writers, and manifestly here could not have worked any injury.

“The contention that no legal presumption as to grand larceny could arise because only a small portion of the stolen property was recovered is wholly untenable. Manifestly, a presumption as to the Avhole must arise from the unexplained discovery of a portion.”

We are of opinion that this last case is decisive of the question involved in the present case; for the court clearly held that, where the theft of goods of sufficient value to constitute grand larceny had been shown, and the accused found, recently thereafter, in possession of part of the goods, but of a value otherwise insufficient to raise the offense to grand larceny, and no reasonable explanation had been given of such possession, yet the jury were not only authorized from such evidence to indulge in the inference of the guilt of the defendant as to the larceny, but also as to the grade of the offense — that it ivas grand larceny; that the presumption or inference of fact extended to the whole case.

The Scarver Case, 58 Miss. 407, relied on by the appellant, is not in conflict with any of these cases. By each of the three instructions in question in the case before the court it was sought to have the trial court to charge the jury that they would not be authorized to infer guilt of grand larceny alone from the fact that recently stolen goods of the value of twenty-five dollars or more had been found in possession of appellant. In Scarver’s Case, in one instruction, the jury were charged for the state that, although the goods were talcen at different times, still, if they were accumulated by the defendant in one lot, and he retained possession of the same, then this constituted “a continued asportation of the entire lot.” This instruction was held erroneous on ,the very evident ground that it announced that successive petit larcenies, when consolidated, constitute grand larceny; but the court said in passing on this instruction that, where such successive petit larcenies are one continuing transaction, “the thief may be convicted of the final carrying away,” and, if the vaule be sufficient, it is grand larceny. And in the other instruction they were told that all the stolen articles found in possession of the defendant were presumed (meaning, in the light of the above authorities, presumption of law) to have been stolen at the same time, by the person in whose possession they were found. The instruction was very properly held erroneous on these grounds: First, that there is no such presumption in law; second, that the evidence showed that the goods were probably taken by the thief, not at one time, but at different times; and third, that the instruction failed to embrace the idea that mere possession must be recent in order to raise a presumption of guilt. We see no conflict whatever between the Scarver Case and the Snowden Case, supra; and, as already stated, the latter case is decisive .against appellant of the questions involved in this case.

' We conclude that on the trial of a- charge of receiving stolen goods of the value of twenty-five dollars or more (grand larceny under our statute), and goods of that value recently stolen are found in possession of defendant, and the testimony shows no satisfactory explanation of such possession, then there arises a presumption or inference of fact (not of law) that the defendant is guilty — and guilty as to the whole case, the criminal receipt of the goods, and of the grand larceny value as well — and if such a state of facts be proven beyond a “reasonable doubt, the jury would be authorized to convict. On the other hand, if there is enough in the evidence to raise a reasonable doubt in the minds of the jury as to any one or more of the essential elements of the crime, the jury should acquit. For illustration, take one of the elements: If there should be a reasonable doubt from the evidence as to whether the goods found in possession of the defendant were of the value of twenty-five dollars or more, or, if of that value, whether such value was made up of several petit larcenies or one larceny, then it would be the duty of the jury to acquit. And, at the instance of the state or the defendant, it would be the duty of the trial court, in an appropriate case, to grant instructions as to the jury embodying those principles of law.

Affirmed.