State v. Davis ( 1937 )

Appellant on a charge of grand larceny, was convicted of the theft of a Jersey cow belonging to Mr. and Mrs. Frank J. Miller, taken May 26th, 1935, from Crescent Drive, which is a road approximately on the rim of the first bench southwest of Boise, and found approximately a month later in the pasture of one Schrecongost about 8 miles from Emmett.

The facts of the case will appear more in detail in connection with appellant's assignments of error considered seriatim.

The first assignment of error challenges the correctness of instruction No. 21 which was as follows:

"If you believe from the evidence that any witness has wilfully sworn falsely in his testimony in this trial, regarding any material matter testified to by such witness, then the jury may totally disregard the testimony of such witness, except insofar as he is corroborated, to your satisfaction, by other and credible evidence, or by facts and circumstances proved on the trial."

because by this clause it delegated to the jury "the right not only to judge the weight and effect of testimony but to determine under what circumstances it might entirely disregard the testimony of a witness." But the discrimination was properly left to the jury because certainly the court should not draw the distinction, and since the jury must be satisfied of the truthfulness of the testimony, not the court, State v.McPherson, 49 Idaho 687, 291 P. 313, and the instruction required that the false testimony to render it nugatory must be wilful and intentional and that it must relate to a material fact, it was correct. (State v. Waln, 14 Idaho 1, 80 P. 221;Baird v. Gibberd, 32 Idaho 796, 189 P. 56; State v. Boyles,34 Idaho 283, 200 P. 125; State v. Dong Sing, 35 Idaho 616, at 631, 208 P. 860; State v. Brassfield, 40 Idaho 203, at 210,232 P. 1; State v. Muguerza, 46 Idaho 456, at 463,268 P. 1; State v. Alvord, 47 Idaho 162, at 178, 272 P. 1010.)

Assignment of error No. 2 urges that instruction No. 8 placed upon appellant the burden of producing absolving explanatory evidence of (possession of recently stolen property) whereas if the State's evidence was such as to create a doubt as to the dishonesty of his possession, the defendant is entitled to an acquittal.

Instruction No. 19 admonished the jury to consider the instructions as a whole. In order therefore to get a proper perspective of instruction No. 8 it is necessary to read the two preceding instructions together, as follows:

"No. 6. The possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred. "No. 7. "If you believe from the evidence, beyond a reasonable doubt, that the property described in the information was stolen and that the defendant was found in the possession of the property after it was stolen, then such possession is in law an incriminating circumstance tending to show the guilt of the defendant, unless the evidence and the facts and circumstances thereunder show that he may have come honestly in possession of the same.

"In this connection, I further instruct you that if you find from the evidence beyond a reasonable doubt that the property described in the information was found in the possession of the defendant, then in determining whether or not defendant is guilty, you should take into consideration all of the circumstances attending such possession.

"No. 8. "Even though you find from the evidence that the defendant was in possession of recently stolen property, the burden of proof is not upon the defendant to establish by a preponderance of the evidence that he came honestly into the possession of such property.

"All that is required of the defendant is that he produce such evidence and to such a degree of certainty as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of the guilt of the defendant."

State v. Sanford, 8 Idaho 187, 67 P. 492, first announced that the possession of recently stolen property is a circumstance, from which, when unexplained, the guilt of the accused may be inferred, which proposition has been reaffirmed in State v. Bogris, 26 Idaho 587 at 601, 144 P. 789; State v.Jackett, 45 Idaho 720 at 723, 264 P. 875; State v. Yancey,47 Idaho 1 at 6, 272 P. 495.

The court therefore properly instructed as it did in instruction No. 6, and appellant cannot complain that the court instructed the jury as to what if anything could or should have been considered by it, exculpating the defendant from the inference above stated.

It is true as appellant contends, that it is sufficient if the whole evidence raises a reasonable doubt as to the dishonesty of his possession, or guilt because of possession, and that is what in effect was stated. The criticism is that the instruction required the defendant to produce exculpatory evidence, whereas the evidence produced by the State might create in the minds of the jury a reasonable doubt.

In instruction No. 7 the court advised the jury that the possession was incriminating "unless the evidence and thefacts and circumstances thereunder show that he may have come honestly in possession of the same" (italics ours) which would include all of the testimony, State or defense, with regard to possession. Further in the same instruction the jury were advised that in determining the guilt they "should takeinto consideration all of the circumstances attending suchpossession." And in instruction No. 8 itself, the court said: "All that is required of the defendant is that he produce such evidence and to such a degree of certainty as will, when thewhole evidence is considered, . . . ." (italics ours). Clearly including all the evidence in the case, so no matter how slight the evidence produced by defendant if in addition to all the other evidence of the case, it raised a reasonable doubt, no unfavorable inference could be indulged by the jury. Appellant himself admitted to witnesses who so testified that he took the cows to Schrecongost in his trailer and there arranged for their being kept in the pasture, and thus had actual possession of them up till the time he left them with Schrecongost, and during pasturage, by reason of his agreement with Schrecongost, had constructive possession thereof. If an inference is to be drawn from the unexplained possession of recently stolen property, the jury must perforce have been instructed what might overcome this inference, and while the instruction might have more clearly stated the rule, the jury could not have been misled in the particular complained of by appellant. This feature of grand larceny has been considered by many courts and many authorities cited as bearing on the point herein are not controlling because the instructions there considered were so worded as to cast upon the defendant a burden greater than producing a reasonable doubt, nor do these authorities question the correctness of an instruction stating that a reasonable doubt may be raised by the evidence produced by defendant as well as all other evidence produced in the case, and the following authorities from this and other jurisdictions upon a careful analysis thereof show that when instructions No. 6, 7, and 8 are considered together, instruction No. 8 on the point involved here was not prejudicially erroneous. The instruction herein is more favorable to the defendant than that approved inState v. Smith, 30 Idaho 337 at 346, 164 P. 519, as follows:

"Many of appellant's assignments of error are directed against the instructions of the court as given and the refusal to give requested instructions. We will confine this portion of the opinion to a discussion of instructions Nos. 11 and 16 as given by the court. Instruction No. 11 reads as follows:

" 'Possession of property recently stolen, if proven, is not evidence sufficient of itself to warrant a conviction. It is merely a circumstance tending to show guilt which taken in connection with other evidence is to determine the question of guilt. If, however, the jury believes beyond a reasonable doubt that the property described in the information was stolen, and was seen in the possession of the defendant soon after being stolen, the failure of the defendant to account for such possession or to show that such possession was honestly obtained is a circumstance tending to show his guilt; and the defendant is called upon to explain such possession, if such possession has been proved, in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence disclosed any such.' " citing as supporting cases, State v. Wright, 12 Idaho 212-218, 85 P. 493 and State v. Janks, 26 Idaho 567, 144 P. 779. See, also, State v. Jackett, supra, State v. Yancey, supra, State v.Allen, 54 Idaho 459 at 462, 34 P.2d 45, and State v.Brassfield, supra, at 211.

Assignments of error Nos. 4 and 5 considered together purport to assign as error the admission of similar offenses, and that the prosecution was on an erroneous theory. Let us however see what the specific claimed errors and objections were. Taking up No. 5 first, three separate incidents are challenged; the first with reference to an examination of the witness Beason who was allowed, without objection on the part of appellant to testify that he owned and was in possession of a cow June 8th, 1935 (his home apparently being about two miles from the place at which the Wright cow was taken). Appellant then objected to further examination of this witness, whereupon the prosecution, in the absence of the jury, made an offer of proof, to which appellant's objection was sustained.

The next subdivision refers to the testimony of one Neal. These questions were asked:

"Q. And I ask you whether or not on that 30th day of May you lost that cow?

"Mr. DONART: That is objected to as being entirely immaterial. Now, that does not seem to me that would be material to this case, if it were direct evidence, and it certainly isn't rebuttal.

"Mr. MOFFATT: This is preliminary.

"(Discussion of counsel, off the record.)

"The COURT. Overruled, if it is tied up.

"Q. (By Mr. MOFFATT.) Did you lose a cow on the morning, — or, on June 30th?

"A. Yes.

"Q. And what sort of cow was that, Mr. Neal?

"A. She was a little cow; she was Guernsey and Durham.

"Q. And where did you find that cow?

"A. I found her about a month later. I was notified by the sheriff's office to go and look at two cows out on the Hill —"

Whereupon on objection of appellant the prosecution made an offer of proof out of the presence of the jury, to which appellant's objection was sustained.

Higgins on direct examination, as a witness for appellant, testified that defendant and another man came to his place about two miles from the limits of Boise City in the latter part of May or early June, with cattle which were placed in his pasture. He was cross-examined without objection from the appellant and it is this cross-examination which is now assigned as error in the third subdivision. There was no objection, no adverse ruling, and so no error. (State v. Baker,28 Idaho 727, 156 P. 103; Hurt v. Monumental Mercury Min. Co.,35 Idaho 295, 206 P. 184; State v. Chacon, 36 Idaho 148,209 P. 889; State v. Keyser, 38 Idaho 57, 219 P. 775; State v.Wilson, 51 Idaho 659, 9 P.2d 497.)

Assignment of error No. 3 covers the testimony of one Weaver, who was called in rebuttal by the State and testified that he saw an automobile in South Boise about 12:30 on the morning of June 9th, 1935, and noticed the license number of the car and trailer (which were those of defendant) and that his attention was attracted to this because his neighbor had lost a cow. The State did not however undertake to show who this neighbor was or what cow had been lost. The only tie-up as to the Culver and Beason cows was on cross-examination of respondent's witnesses by appellant, and appellant's objection to the offer of proof on the part of the prosecution attempting to show larceny of the Beason cow was sustained.

With regard to the Culver cow, testimony had gone in in chief without objection on the part of appellant, that Culver's cow was found in the pasture where the Miller cow was found, defendant himself had told the sheriff that there were, two cows in the pasture near Emmett, and went with the sheriff to see the cows. One of them was the Culver cow. The defendant had also told one of the deputy sheriffs about the Culver cow. There was evidence that the Culver cow was taken apparently the same night the Miller cow was taken. Thus the assignment is without merit for two reasons: In the first place, conceding that the testimony of Weaver who saw the car on the evening of June 9th in South Boise, should not have been admitted, the only tie-up occurred on cross-examination and defendant's own statements linked her with the Miller cow. (Robinson v. State, (Tex.Cr.App.) 48 S.W. 176; State v. Phillips, 160 Mo. 503,60 S.W. 1050; Autrey v. State, 113 Ark. 347, 168 S.W. 556; Statev. Othick, (Mo.) 184 S.W. 106; and see Bailey v.State, 69 Tex. Cr. Rep. 474, 155 S.W. 536.)

There was no evidence of any other similar offense not thus directly connected with the crime charged admitted, rendering necessary the discussion of the admission of similar offenses to show intent, nor do we pass thereon.

The last assignment of error challenges generally the sufficiency of the evidence to sustain the conviction. Appellant arguing that State v. Seymour, 7 Idaho 257,61 P. 1033, and State v. Marquardsen, 7 Idaho 352, 62 P. 1034, announced the rule that possession of recently stolen property unexplained is evidence of guilt, but when a reasonable explanation is given and there is no conflict of evidence in regard thereto and the witnesses not impeached, the defendant is entitled to an acquittal, and argues that the evidence here makes applicable the asserted holding in the Seymour case in that though:

". . . . It might be urged that the testimony of Mrs. Davis standing alone that the animal had been purchased from a man by name of Mason, even though uncontradicted and unimpeached, is insufficient to meet the requirements of an explanation, but testimony of Mrs. Davis was further corroborated by that of Clare Higgins, for Mr. Higgins' testimony definitely established the existence of Fred Mason, the person from whom Mrs. Davis testified the defendant had purchased the Miller cow, and there is another explanation furnished by the sheriff's testimony more convincing, more logical and more reasonable than the explanation to be furnished by any witness who could have been produced by the defendant. The sheriff admitted that before he even knew this cow had been stolen or suspected the defendant of any larceny of this animal, the defendant told him he had this cow and told him where he had bought it. That is not the action of a guilty man, and we submit that the explanation furnished in the light of the decision in both the Seymour and Marquardsen cases entitles this defendant to an acquittal."

The rule and the application of the rule in the Seymour case has been applied by this court at different times, not without some confusion, as will appear from an examination of State v.Marquardsen, supra, State v. Sanford, supra, State v. Collett Ireland, 9 Idaho 608, 75 P. 271, State v. Seymour, 10 Idaho 699,79 P. 825, State v. Janks, supra, State v. Curtis,29 Idaho 724, 161 P. 578, and State v. Sullivan, 34 Idaho 68,199 P. 647, 17 A.L.R. 902.

From these cases a fair statement of the law as distinguished from a mere application of the rule to the facts of a particular case is found in State v. Curtis, supra, at page 733:

"In State v. Seymour, 7 Idaho 257, 61 P. 1033, this court held that where a reasonable explanation of possession of stolen property is given and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury should have acquitted. In that case the defendant's statement that he bought the horse was corroborated by another apparently disinterested witness. In this case the defendant is corroborated by witnesses Sullivan and Baker only to the extent of proving that he wanted to see his lawyer after receiving the money. This fact does not of itself prove either guilt or innocence. It is a question of reasonable inference. . . . . It is true that the state must prove the guilt of a defendant beyond a reasonable doubt. That is a question in the first instance for the jury, which sees the witnesses and hears the testimony. In a case where the question is whether the defendant's explanation of his possession of the fruits of a crime is reasonable, this court is not justified in substituting its opinion for that of the jury unless it finds that the defendant's explanation was so clearly satisfactory that it was unreasonable of the jury to refuse to give it credence."

and a distinguishing feature between the cause herein andState v. Sullivan, supra, is that therein the possession was not exclusive and herein it is.

The testimony in the case at bar shows the Miller cow was taken between the evening of May 26th from where she was tied by Mr. Miller to a post near Crescent Drive, and the morning of the 27th, when Mrs. Miller went to milk her. There was evidence: that Miller had not sold the cow; of tracks of the wheels of a trailer and indications that the end gate or rear of the trailer had been let down near the point where the cow had been tied; that the tracks or imprint of the tires of the trailer were traced some distance; that there was a peculiarity in the tread of one of these tires, and this peculiar tread was similar to the tread of a tire admittedly from appellant's trailer, introduced in evidence. True the tire was a common kind, but there was also evidence that the last Ford car (the trailer had been made from a Ford) to use this kind of tire was made in 1925 or 1926, and the prosecution was in 1935, and that ten years had elapsed is a circumstance which the jury could consider as indicating that tires of this kind had probably decreased in number. The testimony also shows the Miller and Culver cows were brought to Schrecongost's place the morning of May 27th, by defendant and his wife for pasturage; that the cows remained there until after Miller in company with the sheriff had looked at them a little less than a month after they were taken. There was also testimony that when appellant was asked from whom he secured tile cows he hesitated before recalling the name of Mason, and was unable to tell where he lived except generally in Boise. There was evidence that no such person as Mason lived in or about Boise. The sheriff testified that the defendant told him that he and his wife stayed the night of May 26th in a hotel in Emmett. Appellant however introduced evidence by a young woman employed by him and his wife that he and his wife were at their home near Boise the night of the 26th and left early the morning of the 27th. Appellant's wife also testified they were in Boise on the night of the 26th, and there is further contradiction in that there was testimony that appellant and his wife were at Yensen's place at 9 A. M. with the cattle and that thereafter they went to Schrecongost's place with the cows, but Schrecongost testified they came to his place at about 8:00 A. M. Mrs. Davis testified they bought the cow from Mason when his car was broken down at New Plymouth, they having left Boise at about 5:00 A. M., and they returned from near New Plymouth with the cattle to the Schrecongost place near Emmett. There was testimony by Mrs. Davis and Mrs. Bosteder that they were at Mrs. Bosteder's at noon on the 27th. Mrs. Knox however testified that they came to the Russell Hotel at about 8:00 A. M. the 27th and took a room for the day, and left about 6:00 that evening. The whereabouts of appellant the night of May 26th was very important and not collateral.

The jury was entitled to take into consideration the extent to which Mrs. Davis was able to identify Mason and his truck, and the price paid for the Wright and Culver cows, being $75 for both, and that no receipt was given or bill of sale received.

The record thus discloses facts and circumstances in the evidence sufficiently distinguishing the Seymour and Marquardsen cases, supra, and makes applicable the statements of the court in State v. Ireland, 9 Idaho 686, 75 P. 257, leading to the conclusion that there was sufficient evidence to justify the verdict of the jury, and no prejudicial error appearing, the judgment is affirmed.

Morgan, C.J., and Ailshie, J., concur.