State v. Swarens , 294 Mo. 139 ( 1922 )

I. Instruction 1, summarized in the opinion of HIGBEE, J., contains about the usual formula employed in this State, with the approval of this court, respecting the effect of the appearance in a larceny case of a showing that the accused was found in the exclusive possession of recently stolen property.Presumption The soundness of the doctrine of this court whichArising From authorizes instructions of the kind is open to thePossession. gravest doubt. The rule now in force is well illustrated in State v. Kelly, 73 Mo. 608. In that case an instruction was approved which reads as follows:

"On the one hand, the law presumes in this, as in all other criminal trials, that the defendants are innocent of the crime charged against them, and allows this presumption to continue until overcome by evidence which proves their guilt; and on the other hand, where property has been stolen, and recently thereafter the same property, or any part thereof, is found in the possession of another, such person is presumed to be the thief, and if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him."

Properly to understand this instruction and its real effect the words "beyond a reasonable doubt" must be supplied in sense after the words "prove their guilt" at the end of the first clause. Numerous subsequent decisions have followed this decision and approved instructions of like character. The holding is squarely in conflict with nearly all the authorities and decisions. The error resides in treating the inference from recent, exclusive and unexplained possession of stolen property as a presumption of law. It is not so, as is demonstrated from a consideration of the instruction given in the instant case. [See State v. Hodge,50 N.H. 510. Mr. Bishop, 3 New Criminal Procedure, sec. 740, et seq., expresses his views thus:

"1. The Just Doctrine of this sub-title is believed to be that, when the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case; among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on its being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror's opinion; and —

"2. The Greater Number of the Cases, especially the more recent ones, considered in connection with the familiar proposition that the law is a system as well of reason as of authority, expressed in not quite uniform terms and varying more or less in their outward forms, sustain the doctrine thus stated.

"3. The Leading Later Cases, covering a dozen years or more, are, for the convenience of the practitioner, considering that the doctrine in some of our states is not now the same as in earlier years, here in a note inserted in the alphabetical order of the states, without reference to what aspect of the question they sustain. It will be comforting to the well-wishers of our jurisprudence, who examine these cases, and who remember the condition of the law on this subject fifty years ago, to note that very little now remains in our reports, of unfortunate old doctrines which have melted before inflowing light. Among the views now exploded, —

"Sec. 741. Prima-Facie Case — Burden Shifting — Formerly it was often laid down that when the corpus delicti has been proved, if the stolen goods are shown to have been in the possession of the defendant after — or recently after — the theft, the burden of proof reverts to the defendant to explain the possession, failing which he must be convicted. Discordant and indistinct views were expressed as to whether the presumption was of law or of fact. Later and more enlightened opinions discard this doctrine, in whatever form presented.

"Sec. 742. The Possession Must Be Recent to have the effect we are considering. And all deem that the presumption diminishes in force with the increase of time between the larceny and it. The just doctrine would seem to be that if the possession is very remote, yet how remote must depend on the special facts of the case, the judge in his discretion will exclude it as having no sufficient tendency to prove anything; but when he admits it, he should leave it to the jury with proper suggestions. Judges who admitted it have dealt with it by no uniform rule. When it stood nearly or quite alone in the identifying evidence, and was plainly under the circumstances too remote to found a verdict of conviction upon — as, for example, six months, or even three months — sometimes an acquittal has been ordered. Evidently no rule is reasonably possible.

"Sec. 743. 1. The Doctrine that the Burden Shifts from the State to the defendant is contrary to the true view that, in criminal trials upon the general issue of not guilty, such burden never shifts.

"2. The Source of the Old Doctrine, by which a rule of law, and not the opinion of the jury upon the evidence, convicted defendants of the criminal fact, may not be quite plain; but some references in text-books would seem to trace it to Lord HALE. ``If,' he says, in the passage referred to, ``a horse be stolen from A, and the same day B be found upon him, it is a strong presumption that B stole him. Yet I do remember, before a very learned and wary judge, in such an instance, B was condemned and executed at Oxford assizes; and yet, within two assizes after, C, being apprehended for another robbery and convicted, upon his judgment and execution confessed he was the man that stole the horse, and being closely pursued desired B, a stranger, to walk his horse for him while he turned aside for a necessary occasion, and escaped; and B was apprehended with the horse and died innocently.' Surely nothing further need be said to satisfy the present generation that it is fully time for such barbarous folly to cease.'"

Mr. Wharton, 2 Criminal Evidence (10 Ed.) sec. 758, gives his views:

"Sec. 758. Inferences from Possession of Stolen Goods. — When we take up the presumption arising from the possession of stolen goods, we have again to deplore the looseness of phraseology which assigns one term, ``presumption,' to processes so very different as fictions, presumptions of law, and inferences. Of the confusion which thus arises, the ``presumption' now before us is the most striking illustration. It is really an inference of fact; but frequently, from the notion that inferences and presumptions of law are convertible, it has been declared to be a presumption of law. But the difference will at once be seen by recurring to the distinct processes of reasoning which are thus invoked. The presumption of law, granting its minor premise, establishes a certainty. It says, for instance: ``All persons under seven years are presumed incapable of crime. A is under seven years; he is therefore incapable of crime.' If A is under seven years, then the conclusion is a certainty, and the jury must be directed so to find. This, in fact, is deductive reasoning, in which the major premise is matter of law, and in which all that remains to the jury is to find as to the truth of the minor premise. But in inferences such as those immediately before us, the process is inductive, and neither major nor minor premise is matter of law. Thus, in the case of the inference from receiving stolen property, the reasoning is as follows:

"``The proportion of guilty persons holding stolen goods to innocent is two to one: A holds stolen goods; therefore the probability of his guilt is two to one.' Now, as to this process, it is to be remarked: 1. That the major premise is a statement which is of no value unless it is based upon a large observation of facts; 2, that the conclusion is only a probability; and, 3, that no case arises in which the question comes up pure and simple, for in all cases the fact of possession is mixed with some other qualifying fact or inference.

"Taking up, then, the point immediately before us, we may say that a court may properly tell the jury that the possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred. But the possession must be personal; must be recent; must be unexplained; and must involve a distinct and conscious assertion of property by the defendant. If the explanation involves a falsely disputed identity or other fabricated evidence, the inference increases in strength; and so where the goods are part of a mass of stolen property, and where the case is that of a forged instrument held by one claiming under it. But in any view the question is one of fact."

In the Kelly Case this court seems to have thought that the Court of Appeals (State v. Kelly, 9 Mo. App. 512) held the instruction bad on a theory that all presumptions of law are conclusive in character and that, therefore, the presumption or inference from recent possession of stolen property could not be a presumption of law since it was disputable. This question seems to have overshadowed the real question for decision and the one really decided by the Court of Appeals. There is no doubt that recent, exclusive and unexplained possession of stolen property is evidence of guilt, as practically all agree. That it is a presumption of law which may be given to the jury as requiring a verdict in the sense of the rule now in force in this State is not the law. The authorities cited in the Kelly Case on this point do not support the conclusion reached thereon. In Wills, Circumstantial Evidence (5 Eng. Ed., Am. Notes) p. 68, it is clear the author was not speaking of a presumption to be given to a jury as requiring a verdict of guilt in a criminal case under a system which forbids a judge to comment on the evidence. On pages 25, 26 and 27 of the same volume will be found a discussion of legal presumptions in criminal cases which will disclose that the language quoted in the Kelly Case has no such meaning as that attributed to it. In 2 Best on Evidence, section 321, cited in the Kelly Case, it is said the recent possession of stolen goods "is sufficient to call on the accused to show how he came by them; and, in the event of his not doing so satisfactorily, to justify the conclusion that he is the thief." This is no assertion that such recent possession of stolen property, in the absence of explanation, authorizes the court to require a verdict of guilty The conclusion of guilt, under our system, is for the jury to draw, if so advised. Both these are English authorities and the difference in the practice is to be kept in mind. This was pointed out in the New Hampshire case cited by the Court of Appeals in State v. Kelly, supra. The quotation from Burrill is of the same kind. It is said the failure to explain will "warrant the final inference or conclusive presumption of his being the real offender." [Burrill on Circumstantial Evidence, p. 446.] The statement that the burden of proof is by the presumption mentioned put upon defendant to explain is not authority for an instruction to a jury, under our system respecting instructions, that the burden is upon him. It is perhaps a part of the reasoning of English judges in charging juries. Our practice does not permit the court to charge the jury. Mr. Burrill says, also (Circumstantial Evidence, p. 67, not b, and p. 446), that recent possession of stolen property is "a rule of evidence;" is "presumptive evidence" and while "sometimes called a presumption of law, or, at least treated as such . . . is obviously a presumption of fact." In the Kelly Case this court also cited Kelly v. Jackson, 6 Pet. 622, a civil case. The court took no cognizance of the distinction with respect to this matter which Mr. Wills points out in paragraphs of his Circumstantial Evidence, to which reference has already been made. The same thing is true of the citation of United States v. Wiggins, 14 Pet. 344, also a civil case. The citation of Greenleaf in the Kelly Case does not support the ruling made, as appears clearly from the notes to Section 34, 1 Greenleaf on Evidence (16 Ed.) and the explanation given by Mr. Greenleaf in Section 31, 3 Greenleaf on Evidence (16 Ed.), where he says: "We have heretofore adverted to the possession of the instruments or of the fruits of a crime as affording ground to presume the guilt of the possessor; but on this subject no certain rule can be laid down of universal application; the presumption being not conclusive, but disputable, and therefore to be dealt with by the jury alone, as a mere inference of fact." If it be said that no presumption, as such term is understood here, can survive if this one is to disappear, it may be suggested that it has been pointed out in authorities already cited that presumptions of law (as we term them) are to be used very warily in criminal cases, if at all. This question can be met in connection with such a presumption when it arises. In support of the proposition that the rule in the Kelly Case and many others since decided is wrong, a part of the authorities will be cited. It may not be out of place to suggest that differences in terminology in the several jurisdictions are to be kept in mind in reading the decisions to be cited. It is not necessary to go into the question whether a court has used the most appropriate terms in characterizing presumptions, inferences, etc. It is necessary to understand what each court means by the terms it uses. These easily can then be translated into the language of this court or of the reader. [State v. Brady, 121 Iowa 561, 12 L.R.A. (N.S.) 199 et seq.] Appended to this case is a note which cites numerous cases. [Engleman v. State, 2 Ind. 91; Gravitt v. State,114 Ga. 841; Huggins v. People, 135 Ill. 243; Cooper v. State, 29 Tex. App. 8[29 Tex. Crim. 8]; Lehman v. State, 18 Tex. App. 174 [18 Tex. Crim. 174]; Stokes v. State, 58 Miss. 680; Belote v. State,36 Miss. 96; Stockman v. State, 24 Tex. App. 387[24 Tex. Crim. 387]; Williams v. State, 40 Fla. 480; Hunt v. Commonwealth, 13 Grat. 757, 70 Am. Dec. 443 et seq. and note (Here is found a discussion of many authorities); State v. Duncan, 7 Wash. 336; State v. McRae, 120 N.C. 608.] In the note to State v. Drew, 179 Mo. 315, 101 Am. St. l.c. 485 et seq., will be found a discussion of the matter and citations of a very large number of cases. The great current of the decisions considered runs against the right of the judge to tell the jury that from recent, exclusive and unexplained possession they must find the defendant guilty. The whole evidence is for the jury. [State v. Potello, 40 Utah, 56; Commonwealth v. McGorty, 114 Mass. l.c. 302, 303 (This case is cited in State v. Kelly, supra); Bryant v. State, 116 Ala. l.c. 452; State v. Rosencrans, 9 N.D. l.c. 164; State v. Sanford, 8 Idaho, l.c. 188.] In State v. Mandich, 24 Nev. l.c. 340, 341, is found a paragraph which has met with approval: "In prosecutions for larceny the fact that the stolen property is, recently after the theft, found in the possession of the defendant, can always be given in evidence against him. The strength of the presumption which it raises against the accused depends upon all the circumstances surrounding the case, and is for the jury to determine. In a well considered case, and upon an elaborate review of authorities, it was held that: ``It is a presumption established by no legal rule, ascertained by no legal test, defined by no legal terms, measured by no legal standard, bounded by no legal limits. It has none of the characteristics of law. Whether it be found by the judge or jury, the judge and the jury must be equally unconscious of finding in it any semblance of a legal principle, however much good sense may appear in the result arrived at. Being a presumption of fact, it should, according to our practice, be drawn by the jury and not by the court.' [State v. Hodge, 50 N.H. 510.] It is the province of the jury to determine whether the possession is recent enough to raise the presumption of guilt. The presumption arising from the possession of stolen property is a presumption of fact. [Id. and authorities cited.] Whether the explanation of the defendant of how he became possessed of the property in question was reasonable and truthful, or otherwise, was for the jury to determine." In State v. Hodge, just cited, is found an exhaustive discussion of the subject. The nature of the evidentiary force of recent possession of stolen property is learnedly considered, and the source of the chief errors in decisions like that in State v. Kelly, pointed out. Other decisions are: Douthitt v. Territory, 7 Okla. l.c. 58; Territory v. Livingston, 13 N.M. l.c. 326, 327; State v. Duel, 63 Kan. l.c. 817; State v. Herron, 64 Kan. l.c. 364, 365; Perrin v. Commonwealth, 87 Va. l.c. 557; Baker v. State, 80 Wis. l.c. 421; People v. Cline, 74 Cal., l.c. 577; Graham v. State, 12 Okla. Cr. l.c. 88; State v. Sparks,40 Mont. 82; State v. Bogris, 26 Ida. l.c. 601; Waldon v. State, 182 Ind. l.c. 115; State v. Brinkley, 55 Ore. l.c. 139, 140; People v. Kubulis, 298 Ill. l.c. 527 et seq.; People v. Bullion, 299 Ill. l.c. 213; State v. Trosper, 41 Mont. l.c. 446; Mosley v. State, 11 Ga. App. l.c. 303; Askew v. United States,2 Okla. Crim. 155; State v. Anderson, 162 N.C. l.c. 574; Douglass v. State, 91 Ark. l.c. 495, 496; Wiley v. State, 92 Ark. l.c. 590, 591; Clark v. State, 59 Fla. l.c. 14; Collier v. State, 55 Fla. l.c. 9, 10; Stover v. People, 56 N.Y. 315; People v. Friedman, 149 A.D. l.c. 876; State v. Littleton, 77 W. Va. 804; Thomas v. State,15 Ala. App. 163; State v. Guffey, 39 S.D. 84; State v. Mullins,55 Mont. 95; State v. Larson, 41 S.D. 553; State v. Overson, 55 Utah, 230; State v. Couplin, 146 Minn. 189; Barton v. United States, 267 Fed. l.c. 175; People v. Surace, 295 Ill. 604; Smith v. State, 196 Pac. (Ariz.) 420; Cheeves v. State, 196 Pac. (Okla.) 726; People v. Stennett, 197 Pac. (Calif.) 372; State v. Lennick, 182 N.W. (N.D.) 458; Pospisil v. State, 182 N.W. (Neb.) 506; State v. McCarty, 182 N.W. (N.D.) 754; State v. Keelen, 203 Pac. (Ore.) 306; State v. Williams, 202 Pac. (Ore.) 428; Stallard v. Commonwealth, 107 S.E. (Va.) 722; 17 R.C.L. p. 71, sec. 76; 25 Cyc. 134, 135.

The Kelly Case and all that have followed it, or the rule it announces, are wrong, and the court should say so in no uncertain terms. That there is no such presumption as held in that case is made too clear by the authorities quoted and cited to require further discussion. The jury should be allowed to try the facts. The great number of erroneous decisions in this State, largely begot by State v. Kelly, is no reason for hesitation in adopting the correct rule. It is quite probable that in most cases no actual harm has resulted. It is obvious that in some cases injustice may be worked by the present rule. We should no longer direct trial judges to substitute themselves for the jury on important issues of fact in cases of this kind. That is what this court has been doing. The apology for the number of citations is that the error in question has become so thoroughly imbedded in our jurisprudence that the temptation to use all the fit material at hand in an effort to blast it out is too great to be resisted.

II. An examination of the decisions cited in the preceding paragraph discloses that the practice with respect to the matter of instructing the jury concerning the effect of evidence of recent and exclusive possession of stolen property, is not at all uniform. Issues of fact are to be tried by the jury. [Sec. 4005, R.S. 1919.] It is the trial court's province to determine whether there is substantial evidence tending to proveJury Question: the charge (State v. Stevens, 242 Mo. l.c. 442),Comment on but it is the province of the jury to weigh theEvidence. evidence and determine whether it proves the charge beyond a reasonable doubt. [State v. Cannon, 232 Mo. l.c. 215.] It is the function of counsel to argue the case. While the trial court may set aside a verdict of conviction if he believes it to be opposed to the weight of the evidence, it is quite improper for him to give the trial jury, in any manner, his views of the weight of the evidence. He should not comment on the evidence, either in instructions or otherwise. If, under applicable rules, there is substantial evidence that property has been stolen, it is the business of the jury to say whether they believe this evidence and whether it engenders the requisite degree of belief in their minds. If there is substantial evidence of defendant's criminal agency, whether that evidence be evidence of recent and exclusive possession of stolen property or evidence of some other character, it is still the duty of the jury, and of the jury alone, to weigh the evidence and, for themselves, respond to the question whether this evidence convinces them beyond a reasonable doubt. The trial court ought not to argue the question, either directly or by comment in instructions which, directly or by implication, gives the jury his view of the weight of the evidence. The evidence on such a question should go to the jury like that on any other. Counsel may argue the facts and the inferences to be drawn therefrom. The jury can give such facts the weight they think they deserve and draw the inferences they believe ought to be drawn. This is peculiarly their duty. [State ex rel. v. Ellison, 268 Mo. l.c. 256, 257.] With respect to an issue of the kind in question it is as much the trial court's duty strictly to confine his instructions to the law as it is in any other matter or issue.

III. In view of what is said in paragraph I, anCircumstantial instruction on circumstantial evidence would haveEvidence. been proper on the trial of this case.

For the reasons given I concur in reversing the judgment and remanding the case for further proceedings. Woodson, Graves,David E. Blair and Elder, JJ., concur.