State v. Overson ( 1906 )

BAET'OH, O. J.

Tbe defendant was prosecuted for and convicted of grand larceny. Upon being sentenced to- a term of imprisonment in tbe penitentiary, be appealed to tbis court, and has assigned various errors.

It appears from tbe information that be was charged witb having stolen two heifers on July 16, 1904. The evidence shows that one of the heifers was the property of Charles A. Memmott and' tbe other of Samuel Memmott, and that no disposition of them was ever made or authorized by the owners. On July 17, 1904, tbe defendant, assisted by another man, drove tbe heifers witb other cattle to Eureka, and on tbe next day sold them to butchers. The bides of tbe stolen cattle were produced in court, at tbe trial, and identified by the owners. Tbe defendant testified that, on July 12, 1904, be purchased tbe heifers of a stranger; and Charles A. Mem-mott testified that be last saw one of them between July 12 and 14, 1904. There, is also testimony tending to show that tbe defendant attempted to flee from arrest, and that, after bis arrest, he admitted that he made such attempt. Counsel for tbe appellant does not claim that tbe evidence is insufficient to sustain tbe conviction, but insists that there is no direct proof of a 'felonious taking and appropriation of tbe property; that there is simply proof of circumstances tending to show such a taking and appropriation; and that, therefore, the court erred in refusing to instruct the jury specifically upon circumstantial evidence.

This is the appellant’s principal contention, and we are of the opinion that under the facts and circumstances in evidence, it is not well founded. It is doubtless true that, in a criminal case, where a conviction is sought alone upon proof of circumstances, it becomes the duty of the court to instruct the jury upon the question of circumstantial evidence, and that a refusal to do so may constitute reversible error. And this is true, as to many eases, even where there is some direct evidence, but where the prosecution relies' upon circumstances for a conviction. In all such cases the court should charge the jury as to the law applicable to the circumstances in evidence, but no particular form of words is necessary. If the law is applied to the facts and circumstances shown by the proof, in language intelligible to the jury, it is sufficient. The case at bar is not such a one as to render an instruction upon the question of circumstantial evidence, in the usual form, or in the form requested by the appellant, indispensable. Here the defendant admits that he had the property, the subject of the larceny, in his possession, and that he came into possession of it on a certain day, while the proof shows that the owners never sold or disposed of it, and that the defendant drove the heifers away and sold them to butchers. Then, in explanation of his possession and appropriation of the stolen property, the defendant testified that he purchased it of a stranger. ' This raised the decisive question in the case, for, if in fact he had purchased the property in good faith, his taking and possession would not have been felónious. His evidence of purchase tended to negative any intent to steal, and constituted an important and controlling circumstance. This was specifically submitted to the jury, as follows: “Gentlemen of the jury, there is some evidence in this case that tends to show that the defendant, James 0verson, bought the two heifers referred to by the witnesses in this case, the same being the two heifers that were sold by the defendant at Eureka in July, 1904, of a man by the name of Jackson. You are therefore instructed that, if you believe, or have a reasonable doubt as to whether or not the defendant bought the said heifers of Jackson, then, and in that event, you should find the defendant not guilty.” The question of purchase was thus submitted to the jury in plain language, and the court had previously in its charge pointed out to them the material allegations in the information, and had charged them that, if the state had failed “to prove any one or more of the material allegations” to their “satisfaction beyond a reasonable doubt,” they must acquit the defendant. The court also charged the jury as to the presumption of innocence, and upon the question of reasonable doubt. In fact the charge appears to cover every material' element in the case, and is as favorable to the prisoner as he had a right to request. The charge as a whole submitted the case plainly and fairly to the jury; and therefore the mere fact that the court refused to charge upon the question of circumstantial evidence, in the manner or form requested by the defense, cannot, under the facts and circumstances shown by the record avail the prisoner upon appeal; his rights not appearing to have been prejudiced by the court’s refusal. The duty of the court in this regard was performed by instructing the jury upon the law applicable to this particular case in plain and intelligible language. Other courts, in similar cases, have ruled likewise. (Brady v. Commonwealth, 74 Ky. 282; Solander v. People, 2 Colo. 48; Jones v. State, 61 Ark. 88, 32 S. W. 81; State v. Seymour, 94 Iowa 699, 63 N. W. 661.)

There are other assignments of error, but, upon careful examination, we are of the opinion that none of them are well taken, and that separate discussion of them is not important.

We find no reversible error in the record.

The judgment is affirmed.

McCAKTY, J., concurs.