Campbell v. State

Decision Date18 March 1898
Citation49 N.E. 905,150 Ind. 74
PartiesCAMPBELL v. STATE.
CourtIndiana 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.

McCABE, J.

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: “The exclusive possession of stolen property soon after the larceny, if unexplained, raises a presumption that the person in whose possession it is found is guilty of the larceny. Gillett, Cr. Law, § 553; Smathers v. State, 46 Ind. 447;Galvin v. State, 93 Ind. 550;Turbeville v. State, 42 Ind. 490;Hall v. State, 8 Ind. 439;Engleman v. State, 2 Ind. 91;Jones v. State, 49 Ind. 549.” 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: “Possession of recently stolen property, if such possession be unexplained, is prima facie evidence of theft, such as will authorize the inference or presumption of guilt; but such inference or presumption is not a mere legal one, but is one of fact to be found by the jury. The trial court should, in no instance, charge the conclusiveness of such inference and presumption, but should submit them as facts to be found by the jury; for at most they are but circumstances from which guilt is inferred, and not positive proof establishing it.” 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: “Of these presumptions of law, some are mere natural presumptions or principles, recognized and enforced without change. Others are natural presumptions artificially strengthened. Others, again, are mere technical assumptions or arbitrary rules. They have long been divided into two distinct classes: conclusive or absolute and disputable or rebuttable presumptions. Conclusive presumptions, as they are ably explained by an American writer on the subject, ‘are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long experienced connection (between facts) has been found so general and uniform as to render it inexpedient for the common good that this connection should be taken to be inseparable, and universal. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and therefore it is that all corroborating evidence is dispensed with, and all opposing evidence is forbidden. * * * Of this class is the presumption that a sane man contemplates and intends the natural and probable consequences of his own acts, which has already been shown to be a natural presumption or principle. Another is that an infant under seven years of age is incapable of committing a felony, which also rests essentially upon the laws of nature; the precise limitation of time being dictated by obvious considerations of expediency, and, indeed, of necessity. In these cases of conclusive presumption, it has been well remarked, the rule of law merely attaches itself to the circumstances, when proved. It is not deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good.’ Disputable or rebuttable presumptions, otherwise called ‘inconclusive presumptions,’ and by the civilians ‘presumptiones juris tantum,’ are, like the preceding class, intendments made by law, but, unlike them, only hold good until disproved. ‘These as well as the former,’ observes an American writer already quoted, ‘are the result of the general experience of a connection between certain facts or things, the one usually being found to be the companion or the effect of the other. The connection, however, in this class, is not so intimate, nor so nearly universal, as to render it expedient that it should be absolutely and imperatively presumed to exist in every case, all evidence to the contrary being rejected; but yet it is so general, and so nearly universal, that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other in the absence of all opposing evidence. In this mode the law defines the nature and amount of the evidence which it deems sufficient to establish a prima facie case, and throws the burden of proof on the other party; and, if no opposing evidence is offered, the jury are bound to find in favor of the presumption.” And the same author, on page 59, says: “It is not to be understood, however, that presumptions of law are excluded from the view of juries in criminal cases. Some leading presumptions of this class, and belonging to its rebuttable...

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