State v. Grimmett

RICE, J.

The appellant was convicted of the crime of grand larceny of a certain cow, and appeals from the judgment.

It is contended by appellant that the court erred in permitting evidence to be introduced relative to an unrecorded brand upon the cow.

G. S., sec. 1920, provides: “All brands, earmarks and ear-tags shall be recorded with the department of agriculture. No evidence of ownership of stock by brand, earmark or eartag shall be permitted in any court of this state unless the brand or earmark or eartag be recorded as provided in this article.”

C. S., sec. 1927, provides: “In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand, earmark or ear-tag of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, earmark or eartag, and that such owner is entitled to the possession of said animal at the time of the action: Provided, That such brand, earmark or eartag has been duly recorded as provided by law. Proof of the right of any person to use such brand, earmark or eartag shall be made by the copy of the record of same, certified to by the department of agriculture in accordance with the provisions of this article, or the original certificate issued to him by the department. Parol evidence shall be inadmissible to prove the ownership of a brand, earmark or eartag.”

The evidence complained of wras not introduced for the purpose of proving ownership by brand,-but as a matter of identification. There is nothing in the statute to prevent the introduction of evidence of an unrecorded brand for such purposes. (State v. Henderson, 72 Or. 201, 143 Pac. 627.)

Formerly, the statute forbade the use of evidence of an unrecorded brand, earmark or eartag for purposes of identification. (R. C., sec. 1228.) But by the amendment contained in 1913 Sess. Laws, chap. 171, p. 543, the prohibition against the use of such' evidence for purposes of identification was omitted from the section.

-The respondent requested the court to instruct the jury as follows:

“You are instructed that if you find from the evidence that the defendant slaughtered the animal mentioned in the information, or caused or procured the same to be slaughtered, within three years preceding the date of filing the information in this case and failed to retain in his possession the hide taken off such animal, with the ears attached thereto, without any alterations of the marks on the same and without any disfiguration of the brand on the hide, for a period of thirty days after the animal was slaughtered or killed, but on the other hand did sell or dispose of the hide, or cause the same to be sold or disposed of within thirty days after the animal was slaughtered or killed, or did disfigure the brand on the slaughtered animal such act and omission on the part of the defendant is prima facie evidence of grand larceny.”

The trial judge noted that, this requested instruction was denied because the law was given in the words of the statute (C. S., sec. 1948), and instructed the jury as follows:

“Any person who at any time slaughters or kills any cattle must retain in his possession the hide taken off such cattle with the ears attached thereto without any alteration of the marks on the same, or any disfigurement of the brand, for the period of thirty days after such cattle have been slaughtered or killed. Proof of the failure of any person to comply with the foregoing provisions of this law shall be prima facie evidence of the commission, by the person so failing to comply therewith, of the crime of grand larceny as to the cattle so slaughtered or killed.”

No exception was taken to the instruction as given, but having been given substantially as requested by the state, we think it is deemed excepted to within the meaning of C. S., sec. 9012.

This instruction is attacked upon the ground that the law is unconstitutional.

In State v. Dunn, 13 Ida. 9, 88 Pac. 235, referring to the power of the legislature to enact laws governing the admission and effect of evidence in the courts, this language is used:

“The subject is one over which they [the legislature] have plenary power. They might declare that any particular class of evidence shall be inadmissible to establish any particular fact or issue. They may prescribe the modes of proof and the manner of making proof, and the effect such proof shall have in the courts.”

The power of the legislature in this respect, however, is subject to certain limitations. One of the limitations is stated as follows in the ease of McFarland v. American Sugar Refining Co., 241 U. S. 79, 36 Sup. Ct. 498, 60 L. ed. 899, see, also, Rose’s U. S. Notes:

“It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.” (See, also, Mobile J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, Ann. Cas. 1912A, 463, 31 Sup. Ct. 136, 55 L. ed. 78, 32 L. R. A., N. S., 226, see, also, Rose’s U. S. Notes.)

A case often cited.is Commonwealth v. Williams, 6 Gray (Mass.), 1. The principle underlying this case is expounded in In re Opinion of Justices, 208 Mass. 619, 94 N. E. 1044, 34 L. R. A., N. S., 771, as follows:

“There are many statutes in' which the legislature has enacted that the existence of a fact which ordinarily created a strong probability of the commission of an offense shall be prima facie evidence of guilt, and such statutes have been held constitutional.” (See People v. Cannon, 139 N. Y. 32, 36 Am. St. 668, 34 N. E. 759; United States v. Yee Fing, 222 Fed. 154; Robertson v. People, 20 Colo. 279, 38 Pac. 326; Luria v. United States, 231 U. S. 9, 34 Sup. Ct. 10, 58 L. ed. 101; Meeker v. Lehigh Valley R. Co., 236 U. S. 412, Ann. Cas. 1916B, 691, and note, 35 Sup. Ct. 328, 59 L. ed. 644, see, also, Rose’s U. S. Notes.)

So long as the evidence is of itself material and relevant, the statute may make it prima facie proof of the ultimate fact which it tends to establish, and may thus shift the burden of evidence.' Where, however, there is no connection or rational relationship between the fact proved and the ultimate fact to be presumed, .such a statute shifts the burden of proof, and in a criminal case deprives the defendant of the protection of his constitutional guaranties.

In the case of State v. Griffin, 154 N. C. 611, 70 S. E. 292, it is said:

“It is a part of the organic law of this state that there shall be no imprisonment for debt except in case of fraud. The bald fact that a person contracted a debt and promised to pay it in work, standing alone, does not justify a presumption of fraud in contracting the original debt, any more than it would if he had promised to pay it in money. It is beyond the power of the legislature to create such a rule of evidence and enforce it in the state’s own courts. It is but an arbitrary mandate, there being no rational connection, tending to prove fraud, between the fact proved and the ultimate fact presumed. Such an arbitrary rule of evidence takes away from the defendant his constitutional rights and interferes with his guaranteed equality before the law; and, as the supreme court of the United States says, ‘violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.’ (Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145, 55 L. ed. 191, see, also, Rose’s U. S. Notes.) Mr. Justice Hughes, who delivered the opinion of the court, further says: ‘It is apparent that a constitutional prohibition cannot be transgressed indirectly by the .creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from the constitutional restrictions.’ ”

The act of a person in disposing of the hide of an animal within thirty days after it has been slaughtered by him is an act innocent in itself, except as made otherwise by statute% It may be necessary in the face of a falling market in order to prevent financial loss. It does not tend to prove that the animal slaughtered belonged to someone else, or that it had been stolen. If the statute had referred only to alteration of the brands upon the hide, or the defacement of other marks thereon, possibly there might have been some connection between the act and the fact to be presumed. But the statute goes further, and declares that the mere fact of failing to retain possession of a hide from a slaughtered animal for thirty days is prima facie proof of grand larceny. Under this statute one could be convicted without any evidence that any, cattle of any description had been stolen from any person. The instruction, if followed by the jury, relieved the state from the necessity of offering any evidence of the corpus delicti. It deprived the defendant of the benefit of any presumption of innocence, and required him to take the burden, not only of proving his own innocence, but perhaps of proving that the crime had not been committed.

The court properly instructed the jury in the language of C. .S., sec. 8957, as follows:

“A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely showp the commission of the offense, or the circumstances thereof. '

In the present case the only evidence of the taking of the cow and the mutilation of the brand thereon, the killing of the animal and the disposal of the carcass, is found in the testimony of witnesses Elam and Faust. .Elam is an admitted accomplice. Under the circumstances of this case the court properly submitted to the jury the question of whether or not Faust was an accomplice. There is corroboration as to the disposal, and sale of a cowhide to witness Hetrick the day after it is alleged the animal was killed by appellant, but there was no identification of the hide sold as that of the cow alleged to have been stolen except by the witness E'lam. If Faust was an accomplice, there was no competent evidence of the felonious taking of the animal by appellant, or tending to connect him with the commission of the offense, except as to the mere fact of the disposal of a fresh cowhide which was unidentified by com'petent evidence. The jury could have found that Faust was an accomplice and yet, relying upon and being misdirected by the instruction complained of, could have found appellant guilty.

The giving of the instruction was error.

Since the cause must be remanded for a new trial, we will refer to one other assignment of error.

It is claimed that the court erred in giving the following instruction:

“A principal in the commission of a crime, or an accessory before the fact, would be an accomplice, but an accessory after the fact would not be considered an accomplice. Therefore, the testimony of an accessory after the fact would not need to be corroborated, to justify a conviction, and could be considered as corroborating the testimony of an accomplice.”

In this connection it is claimed that the court erred in refusing to give the following instructions requested by appellant:

“You are instructed that an accomplice means anyone connected with the commission of a crime, either as principal offender or any accessory. It includes all persons who are connected with the crime or unlawful act or omission on their part transpiring on or before, at the time of, or after the commission of the crime.”

“An accomplice, as the term is used in our statutes and as meant in these instructions, is one who, at any state of the criminal enterprise, participated in any degree in its commission under such circumstances as warrant the conclusion that the acts under consideration were knowingly done in aid of an unlawful enterprise.”

The latter instruction was modified somewhat and given by the court.

The action of the court complained of was not erroneous.

There is no statutory definition of an • accomplice in this state. In People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A., N. S., 704, accomplices are defined as follows:

“All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.”

In State v. Edlund, 81 Or. 614, 160 Pac. 534, the following definition is given:

“An accomplice is a responsible person whose wilful participation in the commission of a crime, when .that fact is established by competent evidence in a court of requisite jurisdiction, renders him liable to a conviction of the offense. ’ ’

An accessory after the fact is not an accomplice. He does not become connected with the crime until after its commission. (State v. Slothawer, 56 Mont. 230, 182 Pac. 270; State v. Cartwright (Iowa), 174 N. W. 586.)

The judgment is reversed and a new trial ordered.

Morgan, C. J., concurs.