Curran v. State

• Decision Date: 25 April 1904
• Citation: 12 Wyo. 553,76 P. 577
• Parties: CURRAN v. STATE
• Court: Wyoming Supreme Court

76 P. 577

12 Wyo. 553

CURRAN v. STATE

Supreme Court of Wyoming

April 25, 1904

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

The facts are stated in the opinion.

Affirmed.

Marion A. Kline, for plaintiff in error.

To justify conviction in a criminal case the evidence of guilt should be clear and convincing, and of such a nature as to convince any unprejudiced person beyond a reasonable doubt that the defendant committed the crime in question. In the case at bar the verdict is so palpably against the law and the evidence as to show either passion and prejudice on the part of the jury or such an indifference to the rights of the defendant as to justify the vacation of the verdict. When there is no conflict in the evidence upon a particular subject the point is to be considered as established by the evidence unless the witnesses thereto are successfully impeached. Upon the evidence therefore in the light of the testimony of Mrs. Drake to the effect that defendant was not present when the goods were concealed and that they were concealed by her husband, clearly establishes the want of defendant's knowledge of the concealment of the goods where they were found. There is no evidence pointing to such knowledge on his part except the mere fact that he occupied a room in the house under which the goods were found. That fact alone would not justify the inference of knowledge on the part of the defendant. Outside of defendant's alleged admissions, there is no evidence connecting him with the theft or possession of the goods in question. The evidence is insufficient to support the verdict. No goods were identified as the property of the railroad company; no proof was offered that any goods were ever stolen from the cars of the company either in Wyoming or elsewhere. The bare statement is made that reports were received to the effect that boxes of merchandise consigned to Cheyenne and other points had been tampered with, or that all the goods which should have been in such boxes were not found in them when opened. The evidence does not identify the goods found as the property of the railroad company.

A conviction cannot be had on the extra-judicial confessions of the defendant unless corroborated by the proof aliunde of corpus delicti. (6 Ency. Law (2d Ed.), 582, and cases cited; 1 Whart. Cr. L., Sec. 745; Williams v. People, 101 Ill. 386; People v. Williams, 57 Cal. 108; Johnson v. State, 60 S. W., 668.) Outside of defendant's alleged admissions, there is no testimony showing that he ever received any of the goods or at any time had them in his possession.

Where the appellate court is convinced that the defendant has been convicted on insufficient evidence a new trial will be granted, though refused by the lower court. (Williams v State, 85 Ga. 538; King v. State, 44 Ind. 286; Holman v. State, 8 Ark., 110; Wilson v. State, 12 Tex. App., 488.)

No principle of law is more firmly established than that the verdict must correspond with the evidence. If guilty at all the defendant was guilty of aiding and abetting in the larceny of part of the property and not guilty of receiving stolen goods; and the only verdict that could be supported by the evidence would be one of petit larceny upon any theory of the testimony. Where a person aids in the larceny he cannot be convicted of receiving the goods. (2 Bish. Cr. L., Sec 1140; Hughes Cr. L., 189; 1 Whart. Cr. L. (9th Ed.), 986; State v. Kinder, 22 Mont. 516; State v. Honig, 78 Mo. 252; Smith v. State, 59 O. St., 530.) Larceny and receiving stolen property are distinct and separate offenses under the statutes, and a man cannot be guilty of both crimes in the same transaction. In order to convict of the crime of receiving stolen goods with guilty knowledge, it must be affirmatively shown by the prosecution that the goods have actually come into the possession and under the control of the receiver. (28 Bish. Cr. L., Sec. 1139; 24 Ency. Law, 48.) There is a fatal variance between the charge in the information that the goods were stolen by some person unknown to the prosecuting attorney and the proof, it appearing that Drake, who had been jointly informed against with the defendant, was the thief, and that the prosecuting attorney knew when he drew up the information or might have known that the evidence showed that if defendant received the goods at all he received them from Drake. Having alleged that the thief was unknown to the prosecuting attorney, and it appearing by the evidence that he was known, the variance must be considered fatal. (Hughes Cr. L., 190; Presley v. State, 24 Tex. App., 34; Merwin v. People, 26 Mich. 301; Sault v. People, 3 Colo. App., 502; 3 Greenleaf's Ev., 22; Whart. Cr. Pl. & Pr., 111, 112.)

The State must prove beyond a reasonable doubt every material allegation in the information. (Patton v. State, 43 S. E., 533; Stanley v. People, 104 Ill.App. 294.) Whenever it is possible proof of the corpus delicti in larceny must be given by the testimony of the owner. (State v. Moon, 41 Wis. 636; Bubster v. State, 33 Neb. 663; Chisholm v. State, 45 Ala. 67; Bowling v. State, 13 Tex. App., 338.) The evidence in the case was insufficient to prove the corpus delicti. (Fuller v. State, 43 Ala. 275; Hand v. State, 110 Ga. 275.) Mere possession of property alleged to be stolen will not sustain conviction and is not sufficient to raise a presumption that the one in possession is guilty of larceny unless the larceny of the property has been proven by other and proper evidence. (Hughes Cr. L., 412; Lane v. State, 45 S. W., 694; Bailey v. State, 52 Ind. 462; McClain's Cr. L., 724; O'Connell v. State, 55 Ga. 297; Thomas v. State, 109 Ala. 25; People v. Williams, 57 Cal. 108; State v. Taylor, 25 Ia. 273; State v. Furlong, 19 Me. 229; People v. Montague, 71 Mich. 318.)

The ownership of the goods must be proven as laid in the information. None of the goods in question were identified as the goods of the company, and the only evidence upon that question was the alleged confession of the defendant. Such confession was insufficient to authorize a finding that the goods were the property of the person named in the information. (People v. Ennis, 77 N. Y. Sup., 228; Commonwealth v. Billings, 167 Mass. 284; Henningberg v. State, 72 S. W., 175; Buchanan v. State, 109 Ala. 7; Crockett v. State, 14 Tex. App., 226; Johnson v. State, 60 S. W., 668; State v. Nesbit, 43 P. 66.)

In order to make the possession of property alleged to have been stolen presumptive evidence of guilt, it must be shown that the goods were in the personal, exclusive possession of the accused. (Jones v. State, 30 Miss. 654; Orr v. State, 107 Ala. 35; State v. Wilks, 58 Mo. App., 163; People v. Wilson, 151 N.Y. 406; State v. Casper, 93 Mo. 242; Turbeville v. State, 42 Ind. 496; Van Straaten v. People, 26 Colo. 134; Casas v. State, 12 Tex. App., 65.)

The venue must be proven as laid or the defendant will be entitled to his discharge. (Stone v. State, 105 Ala. 70.) There is no evidence in the case to show where the goods were stolen. The Union Pacific Railroad Company, from whose cars the goods were alleged to have been stolen, extends from Council Bluffs, Iowa, to Ogden, Utah, and it is impossible from the evidence in the case to infer that they were stolen from the cars in Wyoming. The larceny, if committed at all, was committed when the cars were entered and the goods taken. If the goods were stolen in Nebraska, then the defendant could not be convicted in this State of the crime of receiving them unless there is an express authority of statute to that effect. (2 Bish. Cr. L., 1142.) The statutes of this State make no provision for punishing a larceny committed in another state, nor do they make it a crime to bring into the State goods stolen in another state. (Beal v. State, 15 Ind. 378; Kiser v. Woods, 60 Ind. 538; Van Buren v. State, 91 N. W., 201; State v. Le Blanche, 31 N. J. L., 82; State v. Ronnals, 14 La. Ann., 276; Lee v. State, 64 Ga. 203; People v. Gardner, 2 Johns., 477.)

There is no evidence tending to show that there was a criminal act on the part of the defendant in receiving the stolen goods, even if it should be found that he had them in his possession. (Goldsberry v. State, 92 N. W., 906.) The evidence does not show whether all the goods were stolen or received at the same time; and there is nothing to sustain the charge of grand larceny for the reason that upon the evidence it cannot be said that enough of the goods in value were taken at any one time to constitute grand larceny. The value of property stolen at different times cannot be aggregated, so as to render the crime grand larceny. (Monaghan v. People, 24 Ill. 340; Lacey v. State, 22 Tex. App., 657; Scarver v. State, 53 Miss. 407; Smith v. State, 59 O. St., 350.)

The instruction requested by the defendant should have been given to the effect that the mere fact that the property was found under a house in which the defendant roomed, others also occupying the house, was not sufficient to raise a presumption of possession. Possession of recently stolen property is simply a fact to be considered by the jury. (State v. Bliss, 27 Wash. 468; Gablick v. People, 40 Mich. 292; Smathers v. State, 46 Ind. 452; People v. Hurley, 60 Cal. 77; 3 Greenleaf's Ev., 33; State v. Wilks, 58 Mo. App., 163; Turbeville v. State, 42 Ind. 496; Conkwright v. People, 35 Ill. 207; Moreno v. State, 24 Tex. App., 403; The State v. Bulla, 89 Mo. 599.)

The court erred in not instructing the jury in writing. (People v. Ah Fong, 12 Cal. 348; People v Trim, 37 Cal. 276; People v. Sanford, 43 Cal. , 35; State v. Harkin, 7 Nev., 384; Rakes v. People, 2 Neb., 164.) The court should have instructed the jury to acquit the defendant. (Lunsfors v. Commonwealth,...