State v. Kelly

• Decision Date: 08 February 1881
• Citation: 9 Mo.App. 512
• Parties: STATE OF MISSOURI, Respondent, v. JAMES KELLY AND HENRY JOHNSON, Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 512

STATE OF MISSOURI, Respondent,

v.JAMES KELLY AND HENRY JOHNSON, Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 8, 1881.

1. Where stolen property is found in the possession of a person shortly after the theft, the presumption that the possessor is the thief is one of fact.

2. The failure of one in possession of stolen property to explain his possession in a manner consistent with innocence, does not make the presumption that he is the thief conclusive.

3. The question as to whether one in the unexplained possession of stolen property is the thief must be dealt with by the jury alone, as an inference of fact.

4. The giving of an erroneous instruction is not a ground for a reversal, where there has been no attempt at a defence which the instruction could affect.

5. It is no objection to an instruction that it is partly written and partly printed.

6. Where the defendants in a criminal case are the only witnesses for the defence, an instruction that if the jury believe that any witness has wilfully sworn falsely to any material fact in the cause, or is unworthy of credit, they may disregard his testimony in whole or in part, is not objectionable.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Affirmed.

THOMAS B. HARVEY, for the appellants: It is error to instruct the jury that they have the right to disbelieve such as in their judgment are unworthy of belief.--Thomp. on Charg. Jury, 61, sect. 38; Evans v. George, 80 Ill. 62; The State v. Elkins, 63 Mo. 159. When the words “material facts” are used in an instruction, they should be explained.-- Digby v. Insurance Co., 3 Mo. App. 603. The charge to the jury must be in writing.-- Rev. Stats., sect. 1920. “Burden of proof never shifts to defendant.”--1 Bishop's Cr. Proc. (3d ed.), sects. 1048-1051; 2 Bishop's Cr. Proc., sects. 599, 669, 741, 743, and cases there cited; Ake v. The State, 6 Texas Ct. App. 398; United States v. Haywood, 2 Gall. 485-498; Chaffee v. United States, 18 Wall. 516; The State v. Wingo, 66 Mo. 183. There is no legal presumption of guilt from possession of recently stolen property.--Whart. Cr. Ev., sects. 716, 758; 3 Greenl. on Ev., sect. 31; Fackler v. Chapman, 25 Mo. 249; The State v. Bruin, 34 Mo. 537; The State v. Gray, 37 Mo. 463; The State v. Williams, 54 Mo. 170; The State v. Robbins, 65 Mo. 444; The State v. Hodge, 50 N. H. 510. Rebuttal of presumption from possession should not be limited to accounting for such possession.-- The People v. Chambers, 18 Cal. 383; Chaffee v. United States, 18 Wall. 516.

J. C. NORMILE, for the respondent: The possessor of recently stolen property is presumed to be the thief; and this presumption becomes conclusive unless he explains such possession in a manner consistent with his innocence.-- The State v. Wolff, 15 Mo. 169; The State v. Bruin, 34 Mo. 537; The State v. Williams, 54 Mo. 171; The State v. Lang, 59 Mo. 418; The State v. Hill, 65 Mo. 84.

LEWIS, P. J., delivered the opinion of the court.

The defendants appeal from a conviction of grand larceny. The testimony tended to prove that a trunk and contents were stolen, that soon afterwards the articles were found in the defendants' possession, and that the defendants could not satisfactorily account for such possession. The court instructed the jury that, “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.”

It is an old and familiar principle that the possession, unexplained, of recently stolen property raises a presumption, more or less effective, according to circumstances, against the person so having possession. But the phraseology in which the principle sometimes finds expression is far from accurate, and may convey, in literal interpretation, what was never intended by the standard authorities. Properly stated, the presumption is one of fact, and not of law. Presumptions of law are conclusive. When one arises, it devolves upon the court to declare it, with its consequences. The jury can have no authority to set aside or supersede it. But presumptions of fact are within the control of the jury, who may set them at naught if countervailing facts, or presumptions of fact, are found to be of sufficient weight.

The presumption under consideration is not by any means a declaration of the law--as of guilt or innocence--which attaches itself to a given state of facts found. It is simply a deduction, or inference, that the existence of one fact-- the unexplained possession--indicates the coexistence of another fact, to wit: that the possessor is the person who stole the property. Can it be possible for a court to say that one of these facts conclusively establishes the other fact, without invading the province of the jury? It is contended for the defendants that such is the effect of the instruction given in the present case.

In The State v. Hodge, 50 N. H. 510, the court said, with reference to the presumption we are considering: “It has none of the characteristics of law. Whether it be found by the judge or the 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. * * * When judges [in England], following the common practice of giving the jury their opinions of the facts and the weight of evidence, had charged juries year after year, for a great length of time, that possession of stolen property was presumptive evidence of guilt, or raised a presumption of guilt, this form of judicial instruction finally came to be considered as the law of the land. Whether it was matter of fact or matter of law, was practically immaterial. * * * The uniform practice of the judge giving the jury his opinion on any matter of fact on which he saw fit to aid them in any way, was unquestioned.” Here we find, doubtless, the origin of a formula altogether appropriate in the English practice, but totally at variance with our system, which so carefully guards the sovereignty of the jury over the domain of fact.

The best American writers have perceived the necessity of modifying the English doctrine in its adaptation to our jurisprudence. But in the methods employed there appears sometimes a singular inexactness, which would seem to have given some color of authority for the instruction as framed in the present case. Greenleaf says: “But possession of the fruits of crime recently after its commission, is prima facie evidence of guilty possession; and if unexplained either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.” 1 Greenl. on Ev., sect. 34. In an able opinion by Judge Norton, our Supreme Court appears to have followed, without criticism, this treatment of the subject. The error which it embodies is, however, carefully avoided in the conclusions applied to the case. The State v. Robbins, 65 Mo. 443.

By “attending circumstances” may fairly be understood, as one example, the proofs of an alibi; which, if established, would of course completely destroy any injurious presumption arising from the fact of possession. But how is it possible to “explain” the possession by proving that the possessor was a thousand miles away from the place of the taking? Or, how can “the character and habits of life of the possessor” give information of the manner in which he acquired the possession? Each of these inquiries implies its own answer. The truth is, there are sufficient defences against the presumption arising from possession, which do not explain the possession. Therefore, the presumption is not conclusive without explanation of the possession. The...