OPINION
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 pp. 205-207, 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 Crim. Law,
section 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 raises 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
the cases cited in the quotation above, namely,
Smathers v. State, 46 Ind. at p. 450,
states the law thus: "The court should have charged the
jury that if it 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. 237, 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 from Ayres v. State, 21 Tex. Ct.
App. 399, 17 S.W. 253: "Possession of property recently
stolen is prima facie evidence of theft, and whilst
the law would from such circumstances authorize an inference
and presumption of guilt, such an inference and presumption
is not a mere legal one but is one of fact to be found by the
jury. And the court should, in no instance, charge the
conclusiveness of such presumption or inference, but should
submit them as facts to be found by the jury, for, at most,
they are but circumstances only 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 on Circumstantial Evidence,
at p. 46, et seq., says: "Of these presumptions
of law, some are, as already observed, 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 presumptions 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
being usually 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 to throw 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 division, such as the presumption of malice in
cases of homicide and of an intent to defraud in cases of
forgery, constantly occur for consideration, and are of great
importance as guides to correct conclusions. It is true, that
these are essentially founded upon a natural presumption
which has been already adverted to; but they are not
processes, nor the results of processes of reasoning from
proved facts in particular cases. The fundamental natural
presumption itself has been shown to be strictly an abstract
rule or maxim, and of the same character are the
legal presumptions derived from it. Hence it belongs properly
to the province of the court to direct the attention
of the jury to such of them as become applicable in cases
submitted to them for trial. Of conclusive
presumptions in criminal cases, there are but few; and the
fewer, it is said, the better."
Then
the author...
