State v. Crowder , 114 Utah 202 ( 1948 )

I concur in the result.

If I were convinced the instruction singled out part of the evidence and invited the jury to give particular attention or greater weight to the portions mentioned, then I would hold the giving of the instruction was both erroneous and prejudicial. However, I believe the instruction given by the court is substantially the same as the one this court suggested should be given in similar larceny cases.

The instruction is far from being letter perfect, but consideration should be given to the fact that by stipulation of counsel the court orally instructed the jury. The use of the word "beyond" was unfortunate, but one of its accepted definitions is "in addition to." If this definition is given to the word, then I suggest the instruction be compared wth the one recommended by us in State v. Hall, 105 Utah 162, 145 P.2d 494. In that case we said:

"* * * But since the term ``prima facie' is used in the statute in the sense of presumptive evidence (State v. Potello,40 Utah 56, 119 P. 1023) it would have been more proper to instruct the jury in substance that if it found from the evidence beyond a reasonable doubt that someone had committed the larceny as charged, that the defendant was found in possession of the recently stolen goods and that it further found that he failed to give a satisfactory explanation, there would arise an inference that the defendant committed the larceny and that this inference might, with all other circumstances, be considered in determining whether or not the jury was convinced beyond a reasonable doubt of the defendant's guilt."

I wonder why, in this case, the majority of the court discuss the question of an erroneous instruction based on the proposition that the court instructed the jury that proof of the three elements set forth in the above quotation should be deemed prima facie evidence of guilt. The court gave no such instruction and the fundamental difference between such an instruction and the one given by the court in this case was recognized by us inState v. Hall, supra.

Assuming the evidence established beyond a reasonable doubt that the money was stolen; that immediately after being stolen it was found in the possession of the defendant; and that he failed to make a satisfactory explanation as to how he acquired possession, there is an inference that the defendant stole the money. That is all the first part of the instruction stated. I believe we should accept the view that a court does not err when it merely states a conclusion that all reasonable persons admit, and the law states, is correct. The court did not tell the jury it had to accept the inference nor to convict the defendant because of the inference. In the latter part of the instruction the court told the jury that it might consider this inference in addition to other evidence introduced by the state in determining whether they were convinced beyond a reasonable doubt of defendant's guilt.

While I do not commend the instruction, I do not believe it is erroneous in the sense that it misinstructed the jury on the law.

For these reasons, I concur in the affirmance.