State v. Feeler ( 1982 )

TITUS, Judge

(dissenting).

I respectfully dissent to that portion of the majority opinion which holds the evidence was sufficient to sustain the conviction of stealing.

A person should not be convicted upon an inference of an essential fact. State v. James, 133 Mo.App. 300, 305, 113 S.W. 232, 233[5] (1908). Likewise, no defendant in a criminal case should be compelled to testify against himself (U.S.Const, amend. V; Mo. Const, art. I, § 19) and it violates defendant’s privilege against self-incrimination to place him in a position where he must testify to avoid any adverse inferences that may arise from his failure to do so. 21 Am. Jur.2d, Criminal Law, § 356, p. 383. Nevertheless, there evolved in time and circumstances beyond our ken, the pronouncement that in connection with a prosecution for larceny, the unexplained possession of property recently stolen may, where the corpus delicti has been established, give rise to a presumption of guilt. Perhaps in the heat of psittacosis, this rule was parroted in Missouri until State v. Swarens, 294 Mo. 139, 154-155, 241 S.W. 934, 939[3] (banc 1922), wherein “inference” was substituted for “presumption.” Swarens and others, e.g., State v. Chase, 444 S.W.2d 398, 402-403[4] (Mo.banc 1969); State v. Myers, 551 S.W.2d 312, 313[1] (Mo.App.1977), proclaim the present rule that if a defendant charged with larceny does not explain his possession of recently stolen property, this permits an inference of the fact of guilt, and is a sufficient basis upon which to submit the case to the jury and to sustain a conviction of stealing the property. In scholarly refinement of this broad stroke of the judicial brush, it is explained that the “inference of guilt to which unexplained joint possession gives rise, however, is one of fact and not of law and alone does not suffice to submit the guilt of the accused.... Rather, something more than unexplained joint possession of recently stolen goods—some affirmative participation in the criminal venture—must be shown to convict for the ... theft.” State v. Roberts, 579 S.W.2d 685, 688[5] (Mo.App.1979). Or put differently where joint possession is involved: “The requirement of exclusive possession does not mean that the possession necessarily must be separate from all others, ... provided there is other evidence to connect defendant with the offense .... ” State v. Webb, 382 S.W.2d 601, 604[4] (Mo.1964).¹ In other words, where joint or exclusive possession not separate from all others is involved, defendant’s guilt of theft may not be submitted for jury determination unless there also be evidence of defendant’s participation in the criminal adventure.

By the process of eliminating the fact situations just noted, it appears that in Missouri (though not in all jurisdictions) simply because a person, though actually innocent of the theft itself, is fortuitously or unex-plainably (because of his right to remain silent) found alone possessed of previously stolen property, such a predicament by itself, sans other proof of affirmative participation in the criminal venture, suffices to warrant a conviction. Contrawise, respectable authorities hold that any unfavorable inferences that may arise from unexplained sole possession of recently stolen property cannot prevail over the constitutional right to remain silent or that unexplained single possession of recently stolen goods, without more, is insufficient to sustain a conviction. See, State v. Ruiz, 11 Ariz.App. 205, 463 P.2d 100, 102 (1970); 52A C.J.S. Larceny § 109, at p. 605. It is anomalous justice indeed that in the absence of proof of other affirmative participation in the theft, simple joint possession of recently stolen property prevents conviction of the guilty whereas simple lone possession of the same goods condones condemnation of the innocent.

I am of the opinion that the inference hereinbefore discussed, absent proof of defendant’s other affirmative participation in the crime of stealing, should not alone be sufficient to sustain defendant’s conviction. I am of the opinion that the judgment nisi should be reversed and that defendant should stand discharged of the crime of stealing.

Realizing that a majority of the judges of this court do not share or concur in my dissenting opinion but because of the general interest or importance of the question involved and for the purpose of reexamining the existing law, I urge counsel for defendant to seek transfer of the cause to the Supreme Court of Missouri in accordance with the provisions of Rules 30.27, 83.02 and 83.04, V.A.M.R.

HOGAN, J., joins in this dissent.

BILLINGS, J., concurs in dissent and files separate dissenting opinion.

ORDER

The appellant having filed a motion for rehearing or in the alternative for transfer to the Supreme Court of Missouri and upon consideration of same the court does hereby order as follows: Hogan, J., files dissenting opinion; Billings, J., withdraws dissenting opinion and concurrence in the dissent of Titus, J., and concurs in the majority opinion, and files separate opinion on motion for rehearing; Maus, C. J., Billings, Flanigan, and Prewitt, JJ., vote to overrule the motion for rehearing and deny the motion for transfer; Hogan, Titus and Greene, JJ., vote to sustain the motion to transfer; therefore the motion for rehearing is overruled and the motion for transfer is denied.

1 . “Exclusive” is defined as “excluding all others.” Webster’s New World Dictionary of the American Language, p. 507. Therefore, “exclusive possession” when considered to be a “possession not separate from all others” is an adulteration of the English Language, pure and simple.