Robinson v. State , 18 Wyo. 216 ( 1910 )

Scott, Justice.

Elizabeth Robinson was charged, tried and found guilty of the crime of grand larceny and sentenced to serve a term of years in the penitentiary, and brings the case hereon error. The subject of the larceny is alleged to be a seal skin coat.

1. When the case was called for trial, defendant, through her attorney, C. O. Brown, announced herself ready for trial. The impaneling of the jury was proceeded with and after the jury was partially called M. C. Brown, Esq., attorney for plaintiff in error here, appeared in that court and moved the court for a continuance, saying' to the court that he had just been retained in the case for the defense, that he was not familiar with the facts in the case, that he desired a little time within which to prepare the case for the defense, and that he would prepare a motion for continuance on the ground of an absent witness. At the same time, in open court, the defendant informed C. O. Brown that his services were no longer needed. As soon as prepared the affidavit in support of the motion on the ground of an absent witness was submitted to the court. The court thereupon overruled the motion.

From 'the affidavit it appears that the witness whose testimony was sought was then and for some time prior thereto had been living out of the State, but had verbally promised to return at the time of the trial, and that defendant had relied upon such promise, and that the witness had failed to report at that time. It is conceded that no subpoena had been issued nor was any attempt made to obtain the evidence of this witness by deposition. Upon this statement standing alone the authority in support of the ruling is found in Keffer v. State, 12 Wyo. 49, where it is stated that a party cannot complain of such a ruling who shows a lack or want of diligence in preparing for his or her defense.

It is 'further urged that by neglect and fault of her attorney it was necessary for her to change attorneys at the time she did. It nowhere appears in the record that defendant had fully and fairly stated what she expected to prove by nor the name of the alleged absent witness to C. O. Brown, the attorney whom she discharged, or that he knew of such absent witness or that with such knowledge he neglected and failed to issue a subpoena or procure her deposition. At least without such a showing, after a party has consented to the case being set for trial and upon the arrival of that time announced herself as ready, and the jury is being called, we doubt the wisdom of granting such a motion. If such a practice be encouraged there would be no end to delays in this class of cases where a continuance without merit is often a very great advantage to and eagerly sought by the defendant in a criminal case. The question was one for the court, and if it 'did not abuse its discretion error could not be predicated upon the ruling, and it does not affirmatively appear that the court abused its discretion in this matter. Nor was it a denial of her constitutional right of benefit of counsel. The record shows that she was at all times represented by counsel of her own choosing, and unless misled or prejudiced in her right by Unprofessional conduct of her counsel, which fact should clearly appear, ghe is not entitled as of right at such a stage of the proceedings to delay the court by allowing time to a new attorney to familiarize himself with the case and prepare for a defense. Upon the record the court did not abuse its discretion nor deny her any constitutional right in overruling her motion.

2. It is assigned as error that the evidence is insufficient to support the verdict. There is no direct evidence of asportation by the defendant of the property alleged to have been stolen. Gardner, the prosecuting witness, was one of the inmates of a house of ill fame conducted by the defendant. The evidence tended to show that defendant was ill and confined to her room in the same house on the afternoon and evening of March ió, 1907, the time when the prosecuting witness testified that her coat must have been taken from her room. No one saw the defendant go into or come out of the Gardner room on that day.

The only identifying or criminating evidence .aside from 'defendant’s occupancy together with others of the house, and who together with the frequenters had equal opportunity to steal the coat, is that of Sheffner, the Sheriff, and his deputy, as to the defendant’s conduct, what she said, and what occurred when he made a final search of the house. Indeed, up to this time the evidence does not point to her as the thief any more than it does to any other occupant or frequenter of the house. She knew, in common with the other inmates of the house, from the time when such claim was first made on March nth preceding, that the prosecuting witness then and had since claimed that her coat had been stolen. The evidence tends to show that the Sheriff had made a partial search of the house on March 12th, and a more thorough search on April 7th, following. On the latter date he first searched the beer room and then the linen closet, and failed to find the coat; shortly thereafter, upon a further search of the beer room, he found the coat in a bundle enclosed in a sack or pillow case under the ice box, and when he announced to the defendant that he had found, and where he had found, the coat, she immediately exclaimed: “Why some of the girls must have placed it there.” The beer room and linen closet had a common partition, but no door connecting them. Both opened into a sitting room, so that in going from the beer room to the linen closet one would have to pass out into the sitting room and thence into the linen closet and vice versa. The Sheriff’s deputy, who testified as a witness, sat in the sitting room so he could see any one going in or coining out of either of these rooms from the time he and the Sheriff went into the house for the purpose of serving the warrant until the coat was found. We think this evidence, in connection with other evidence referred to in paragraph 3 of this opinion, was sufficient to support the. verdict.

3. The following instructions were given to the jury, over the objection of the defendant, viz :

“io}4. The court instructs the jury that, if they find, from the evidence, that the defendant was in the possession of the property in question, and that the same was stolen, that the unexplained possession of recently stolen property is a circumstance to be considered by the jury, and such circumstances may be considered by you, in arriving at your verdict, as tending to show the larceny of the property and that it was stolen by the defendant.”

“n. The jury are instructed that if you find from all of the evidence in this case that the coat alleged to have been stolen was found secreted under the ice box in the beer room of the house called Cap and Ball, and that-said coat was so secreted in said beer room between the time that' witness, Sheffner, made the first search of said beer room and the time it was so found therein; and if you find that during said interval between said search by witness, Sheffner, and when it was found by him no person or persons had access to or were in said beer room except the defendant, Lizzie Robinson, and the witness, Sheffner, then said facts and circumstances may be considered by you, in arriving at your verdict, as tending to show the larceny of the property and that it was stolen by the defendant and that it was in her possession when found.”

There is no evidence in the record that the defendant ever claimed or asserted ownership of the coat or was seen in its actual possession. The evidence of the defendant and three other witnesses is practically uncon-tradicted that the defendant was sick and unable to leave her room on the day that the coat is alleged to have been stolen. The prosecuting witness testifies that it was taken from her room during the afternoon of that day. It was not found by the Sheriff for nearly a month thereafter.

It was the theory of the prosecution that defendant secreted the coat under the ice box in the beer room between the first and third search of that room made by the Sheriff on April 7 following the alleged larceny. .He testified that he made three searches of the beer room, each, except the second, being thorough, and he did not discover or find the coat until the third search. The evidence shows that other inmates of the house had access at all times to the beer room except during the time the search was going on, and while the entire house was in the possession of the defendant -the least that can be said is that access to this room was permissive to the other occupants for certain purposes and exercised by all the inmates of the house. These instructions, however, purport to be based upon and to be authorized by the proof that when the search warrant was served no person or persons had access to or were in the beer room during the time when the searches were being made except the defendant and the Sheriff; that she went into the beer room during the interval between the second and third .search, and that the Sheriff followed her a minute and a half after she entered, and upon making a search at this time found the coat under the ice box. Conceding that the evidence shows that fact it does not of itself prove the larceny— at most it would’ prove possession of the coat. Upon a charge of larceny, evidence of possession of goods shown to have been recently stolen is not admissible for the purpose of’ proving the corpus delicti or the fact that the goods Rave been stolen. Such possession is not shown to prove the theft but to identify the thief. (Sec. 740, 2 Bish. New Cr. Proc.) Instruction io}4 was erroneous, for by the latter part of it the jury were told that they might consider such possession as tending to show the larceny of the property; and this also applies to the eleventh instruction. Inasmuch, however, as there is no dispute in the evidence that the coat had been stolen, and the evidence being sufficient upon that question independent of the question of recent possession, we think it at least doubtful whether upon the record here presented the giving of the instruction was prejudicial in that respect.

Instruction number 11 goes a step beyond instruction 10^4, for while the latter is intended to state the effect of the unexplained possession of recently stolen property, the object of the former is to state the effect, as proof that the defendant had possession of the stolen property, of certain facts which might be deducible from the evidence in the case, but without stating that the facts mentioned if found by the jury would tend to prove that the defendant had possession, the instruction states that the facts could be considered as tending to prove the defendant’s guilt of larceny without repeating the usual qualification that “unexplained” possession may be considered as tending to show guilt. Further than that, the instruction totally ignores the explanation given by the defendant in her testimony of her conduct at the time of the search and her denial that she- placed the coat where it was found or that she had possession of it. By analogy to' the requirement in the case of an instruction as to the effect of possession of recently stolen property it would seem that an instruction such as number 11 should be qualified by some reference to the defendant’s explanation. It would seem clear that conceding that the facts mentioned in the instruction if found by the jury would, standing alone, tend to prove the defendant’s possession, and if the latter was. unexplained, tend to prove her guilt, such tendency would be overcome by a satisfactory explanation on the part of the defendant inconsistent with her possession or guilt. If the jury should believe the testimony of the defendant that she did not place the coat where it was found, then it would not be true that the facts mentioned in the instruction would tend to prove that she had been in possession of the coat, for the facts leading to such a conclusion would then be entirely overcome by the defendant’s satisfactory explanation of her conduct and her relation to the property alleged to have been stolen. We think, therefore, that the instruction was erroneous and was highly prejudicial because ignoring the explanation of the defendant with reference to her connection with the coat and the secreting thereof, and also because its effect is to make the mere fact of her possession, eveii though explained, a matter to be considered as tending to show her guilt.'

Instruction ioj4 is perhaps also objectionable because the rule as to unexplained possession, of recently stolen property was given to the jury to be applied in case they should find the defendant to have been in possession, and thus possibly intimating that there had been no sufficient explanation of possession.

4. The court, over the objection of the defendant, gave the following instruction, viz:

“Instruction 'No. 6. The court instructs the jury, as a matter of law, that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of the juror, in view of the consequence of his verdict, is not a reasonable doubt; and a juror is not allowed to create sources or materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence; you are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no' doubt would exist if no oath had been administered.”

No objection was made to the giving of instruction number five, which purports to define a reasonable doubt, but it is contended that another instruction which the coúrt gave to the jury to the effect that the instructions should not be considered separately and alone but together and in the light of each' other, that instructions 5 and 6, when so considered, modified each other and gave to the jury a wrong definition of what constitutes reasonable doubt. Instruction number 6, as above set out, is evidently an attempt to follow the language of the instruction given and approved in Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St Rep. 324. An instruction in almost the exact language used in that case has been approved in Barney v. State, 49 Neb. 515, 68 N. W. 636; Bartley v. State, 53 Neb. 30, 73 N. W. 744, 759; Willis v. State, 43 Neb. 102, 61 N. W. 254; Davis v. State, 51 Neb. 301, 70 N. W. 384; Nevling v. Com., 98 Pa. St. 332. It has also been condemned upon the ground that it in effect relieves the jury from the obligation of their oaths. People v. Johnson, 140 N. Y. 350, 35 N. E. 604; Siberry v. State, 133 Ind. 677, 33 N. E. 681; Cross v. State, 132 Ind. 65, 31 N. E. 473. It will, however, be observed that in the instruction in the case before us the court said to the jury: “You are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been administered.” In the Spies case the language was: “You are not at liberty to disbelieve as jurors, if from the evidence, you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” Whatever force there may be in the adoption and approval of the instruction as given in the Spies case by eminent courts, it is not persuasive as upholding the instruction given in the case before us. Here one of the essential elements of that instruction is lacking, viz: that the belief in the guilt of the accused sufficient to convict must be based upon the evidence in the case. A lack of evidence to prove such guilt can not be supplied by what a juror knows or believes regardless of his oath. Under our procedure he is required to base his verdict solely upon the evidence and the law as given him by the court. It is not out of place to here observe that in Illinois the instructions to the jury are advisory only and the jury remain the judges of the iaw and the facts, (11 Ency. Pl. & Pr., at pages 67 and 68.)

5. During the trial the jury was conducted to the house where the larceny is alleged to have been committed and permitted to view the beer room wherein the Sheriff found the coat. They were put in the charge of sworn bailiffs for that purpose and the manner of the view was indicated by the court to the jury and the officers in charge of them. The view was ordered at’ the request of the defendant and it does not appear that the instructions of the court in that respect were objected to by the defendant or that such instructions were departed from in any substantial manner.

6. Other errors are assigned, but in view of the fact that the judgment must be reversed and a new trial granted for error in giving the instructions Nos. 6 and 11, already referred to, we deem it unnecessary to discuss them.

The'judgment will be reversed and the cause remanded for a new trial. Reversed.

Potter, C. J., and Beard, J., concur.