Dedrick v. State

• Decision Date: 10 June 1936
• Docket Number: 26565.
• Citation: 2 N.E.2d 409,210 Ind. 259
• Parties: DEDRICK v. STATE.
• Court: Indiana Supreme Court

2 N.E.2d 409

210 Ind. 259

DEDRICK v. STATE.

No. 26565.

Supreme Court of Indiana.

June 10, 1936

Ray Dedrick was convicted of burglary in the second degree, and he appeals.

Reversed with instructions.

TREMAIN, J., dissenting.

Appeal from Vanderburgh Circuit Court; John W Spencer, judge.

William McClain and Thomas W. Lindsey, both of Evansville, for appellant.

Philip Lutz, Jr., Atty. Gen., and Wm. E. Bussell, Deputy Atty. Gen., for the State.

ROLL Judge.

The appellant was charged by affidavit with the commission of the crime of burglary in the second degree. To this charge he entered a plea of not guilty. The cause was tried by jury, resulting in a verdict of guilty. On appeal to this court, he has assigned certain alleged errors of the court in giving instructions. He first questions instruction No. 5, given by the court on its own motion as follows: ‘ If the State of Indiana has proved that the property described in the affidavit was stolen, and that such property was, after the larceny, found in the exclusive possession of the defendant, then the law imposes upon him the burden of accounting for his possession and showing that such possession was innocently acquired, and if he fails to do so or gives a false account of his possession, the presumption arises that he has unlawfully, acquired the possession of such property.’

The appellant was charged with breaking into the garage of the prosecuting witness in the nighttime and stealing an automobile. The evidence discloses that at the time of the theft the garage was locked by a padlock, which, after the theft, was found broken on the ground near the garage door. Later the car was found in appellant's possession. It was upon this set of facts that the above instruction was given.

Appellant questions the correctness of this instruction, and says that it has the effect of removing from him the presumption of innocence to which he is entitled, and which attends him, step by step, throughout the trial; that said instruction invades the province of the jury; that the jury is the judge of the facts and the law in all criminal cases; and that the court exceeded its lawful function in telling the jury that the proof of certain facts raises the presumption of his guilt as a matter of law.

The difficult and perhaps fruitless question presented by the giving of the above instruction has given this court, as well as courts of other states and text-writers, much difficulty. There is by no means harmony in our own decisions upon this question. This question has been discussed from two angles: First, when it is raised upon the assignment of error that the verdict of the jury is not sustained by sufficient evidence; and, second, by an instruction to the jury. It will be noted in the decisions hereinafter referred to that, where the question is presented upon the insufficiency of the evidence to sustain the verdict, the court cites indiscriminately the cases where the question was presented both on the insufficiency of the evidence and by an instruction. Perhaps certain language used in the cases where the principle is discussed upon the sufficiency of the evidence has misled the court when applying rules of law upon instructions to the jury.

In the early case of Engleman v. State (1850) 2 Ind. 91, 52 Am.Dec. 494, the jury were instructed as follows: ‘ If the jury believe, from the evidence, that the defendant was in possession of the orders of the Townlys, or any part of them, as charged in the indictment, within a period of four or five months after the time they are alleged to have been stolen, and that they were stolen on or about the time alleged, and the defendant has failed to show how he came by them, he having it in his power to explain his possession if it was an honest one, such possession is a circumstance from which the jury are authorized to raise a presumption, in connection with the other circumstances in the case, to weigh against the defendant.’

This instruction was sustained by the court, and the following is an excerpt from the opinion found on page 96 of 2 Ind.: ‘ The fact that stolen property is found upon a person may always be given in evidence in a prosecution for the larceny against him, and must always be consistent with his guilt; but the strength of the presumption which it raises against the accused, or whether any at all, depends upon the length of time that may have elapsed between the larceny and the finding, considered in connection with the character of the property, the explanations, or the want of them, by the defendant-indeed, all the circumstances surrounding the transaction. * * * No certain lapse of time can be designated, applicable alike to all cases, as raising, or otherwise, the presumption of guilt, from the possession of stolen goods.’

The next case considering this question in this state is the case of Hall v. State (1857) 8 Ind. 439. This was a prosecution for grand larceny, and the court instructed the jury in part as follows: ‘ If the property stolen, or a portion of it, was found, in the possession of the defendant in a short time after the larceny was perpetrated, it would be your duty to find the defendant guilty, unless he satisfies you, from the evidence, that he came by the horse honestly.’

The court said that the instruction, as a general proposition, was incorrect, and makes reference to the case of Engleman v. State, supra, for a correct statement of the law. We find nothing in either of these two cases which can be said to be authority supporting the question here in controversy.

Again in the case of Clackner v. State (1870) 33 Ind. 412, a similar instruction was given by the trial court. One of the instructions reads as follows: ‘ If the goods were stolen, and were shortly afterwards found, or some of them, in the possession of the defendant, the law requires of him that he should give some account of the manner he obtained the goods , and raises a presumption of guilt; and the account or the want of it and its reason always is given with the length of time and kind of goods and all the circumstances, and give them all such weight as the jury, being prudent men, think they should have.’

Another instruction reads as follows: ‘ If goods are stolen, and are shortly afterwards found in the possession of the defendant, common honesty and the law requires him to give a reasonable account of how he came by them; this may be strengthened or weakened by the length of time and kind of property; and all the circumstances should be taken into consideration by the jury.’

These instructions were held erroneous; the court saying: ‘ Certainly, facts much short of giving a reasonable account of how the accused came by them, will rebut the presumption arising from the possession of stolen goods.’ The court further says that the presumption arising from the possession alone is completely removed by the good character of the prisoner; or the possession may be accompanied by other circumstances, such as unsuspicious conduct, which would repel the presumption.

The case of Turbeville v. State (1873) 42 Ind. 490, is a case where the appellant was indicted and found guilty of grand larceny. Here the question of the effect of the unexplained possession of stolen property was presented. The court says: ‘ We are required to decide whether the finding of the stolen property, at the place, and under the circumstances stated, was sufficient to require him to account for their presence, and on his failure so to do, to raise the presumption that he was the thief.’ It must be kept in mind that the court in this case is deciding the question as to the sufficiency of the evidence to support the verdict of the jury, and the court says: ‘ It is well settled by elementary writers on criminal law and many adjudged cases, that the possession of stolen property, to be sufficient to put a party in whose possession it was found upon his defense, the possession must be both recent and exclusive.’ In this case, however, the court held that the evidence was not sufficient to show that the property alleged to have been stolen was in the exclusive possession of the defendant, and that the verdict was therefore not supported by sufficient evidence, and reversed the case.

The case of Jones v. State (1875) 49 Ind. 549, is the first case in which apparently the instruction here in question finds direct support. The appellant in that case was charged and convicted of grand larceny. The following instruction was given by the court in that case: ‘ If you find, from the evidence, that the hogs of James C. Hank had been feloniously stolen, and that recently afterward said hogs were found in the exclusive possession of the defendant, such possession unaccounted for or explained by the defendant would raise a presumption of his guilt; but such presumption of guilt may be explained away or repelled by opposing circumstances, such as unsuspicious conduct connected with the possession.’

The objection to this instruction was that it imposed on appellant the duty of accounting for or explaining the possession of the stolen property; and because it restricted and limited the modes in which the presumption arising from the exclusive possession of goods recently stolen might be overcome or repelled. The court says in passing upon this question: ‘ The law imposes upon one who is found in the exclusive possession of property which has been recently stolen, the duty of accounting for it, or explaining how he came into possession of such property; and his failure, when required to speak, to give a satisfactory account of how he came into possession, or the giving of a false account, raises a presumption that such person is the thief. This presumption is...