Campbell v. State
Decision Date | 18 March 1898 |
Citation | 49 N.E. 905,150 Ind. 74 |
Parties | CAMPBELL v. STATE. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Noble county; J. W. Adair, Judge.
Charles Campbell was convicted of larceny, and appeals. Affirmed.
Henry C. Peterson and Ed. G. Cook, for appellant. Wm. A. Ketcham, Atty. Gen., Samuel E. Alvord, Pros. Atty., and Dickey & Aydelotte, for the State.
The appellant was jointly indicted with another, his wife, charging them with burglary and larceny. The appellant was tried separately by a jury, was found guilty of petit larceny, and judgment followed upon the verdict; the court having overruled appellant's motion for a new trial. The only ruling insisted on as error, under that motion, is the giving of the following instruction by the court: “If you find from the evidence beyond a reasonable doubt that the goods described in the indictment, or any portion of them, were stolen, and that such stolen property was found in the exclusive possession of the defendant within a short time after the larceny was perpetrated, such possession imposes on the defendant the duty and burden of explaining his possession of the said goods; and, if he has failed to satisfactorily account as to how he came by the stolen property, or has given a false account of how he came into possession of such stolen property, the law presumes that the defendant stole the property, and this presumption may be strong enough to justify you in finding him guilty.” The objection urged to this instruction is that the presumption arising from the facts recited therein is one of fact, and not one of law, as the appellant insists the instruction plainly implies. In support of the objection to this instruction counsel cite us to Blaker v. State, 130 Ind., at pages 205-207, 29 N. E. 1077, where this court condemned an instruction as erroneous because it told the jury that the presumption of guilt arising from a similar state of facts was conclusive; the court there saying that “this is plainly erroneous.” This court also said in that case that: This decision only lacks one element of upholding the instruction now before us, and that is it told the jury that the facts enumerated raise a presumption of guilt without saying whether the presumption so raised was one of law or fact, while the one now before us tells the jury that it was one of law. One of these cases cited in the quotation above, namely, Smathers v. State, 46 Ind., at page 450, states the law thus: “The court should have charged the jury that, if they found from the evidence that the goods described in the indictment, or some portion of them, had been stolen, and that such stolen property had been found in the exclusive possession of the defendant within a short time after the larceny was perpetrated, such possession imposed upon the defendant the duty and burden of explaining his possession; and, if he has failed to satisfactorily account as to how he came by the stolen property, or has given a false account of how he came into possession of such stolen property, the law presumes that the defendant stole such property, and this presumption was strong enough to justify them in finding the defendant guilty.” But it is contended that it has since been held by this court that such presumption is one of fact, and not one of law, and that such holding is to be found in Smith v. State, 58 Ind. 340, Blaker v. State, supra, and Dean v. State, 130 Ind. 241, 29 N. E. 911. It matters little that the last case does not sustain appellant's contention, as the other two cases do, and that the weight of authority generally does sustain it. But there were other instructions upon the subject, which makes it necessary to examine the difference between presumptions or inferences of law and fact.
Appellant's counsel refer us to the following statement of the law on the subject by Whart. Cr. Ev. par. 758: This, we think, is a correct statement of the law. But there is nothing in the instruction before us to the effect that the presumption was conclusive unless it be in the words in the instruction, “the law presumes that the defendant stole such property.” But there are two kinds of legal presumptions. If one of them was intended and meant by the language quoted from the instruction before us, then the instruction was not materially erroneous; and, if the other was intended, then perhaps it was. Speaking of presumptions of law, Burrill, Circ. Ev., at page 46 et seq., says: ’ And the same author, on page 59, says: ...
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