Delmont v. State

• Citation: 88 P. 623,15 Wyo. 271
• Parties: DELMONT v. STATE
• Decision Date: 02 February 1907
• Court: United States State Supreme Court of Wyoming

88 P. 623

15 Wyo. 271

DELMONT v. STATE

Supreme Court of Wyoming

February 2, 1907

Rehearing Denied March 19, 1907, Reported at: 15 Wyo. 271 at 278.

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

Oscar L. Delmont was convicted of burglary. The material facts are stated in the opinion.

Affirmed.

J. H Ryckman, for plaintiff in error.

The jury list was illegal in that it did not contain the names of any qualified jurors from a large section of the county. (State v. Bolln, 10 Wyo. 439.) The verdict is not sustained by sufficient evidence. The evidence fails to establish a burglary. The mere possession of stolen property without other evidence is not to be regarded as prima facie evidence of burglary. (5 Ency. L., 61.)

W. E. Mullen, Attorney General, for the State.

The evidence taken on the motion to quash does not bear out the contention that a mere arbitrary number of names was placed on the jury list, without regard to the number of qualified jurors shown by the assessment roll. Upon the evidence the motion was properly denied.

The facts elicited upon the trial of the case itself constituted a chain of circumstances sufficient to convince any reasonable mind of defendant's guilt. The corpus delicti was sufficiently established. (Dalzell v. State, 7 Wyo. 455; State v. Tucker (Ore.), 61 P. 898.) A conviction of burglary is proper on circumstantial evidence. (People v. Jockinsky, 106 Cal. 638; People v. Brady (Cal.), 65 P. 823.) Any other rule would often prevent a conviction of a crime of that character.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The defendant (plaintiff in error) was tried upon an information, found guilty of the crime of burglary and sentenced to the penitentiary for a term of years.

1. The defendant assigns as error the denial of his motion to quash the panel of petit jurors. The bill of exceptions recites "That before proceeding to the examination of witnesses the defendant by his attorney, J. H. Ryckman, filed a motion to quash the panel of jurors," and after reciting the evidence and proceedings taken upon the hearing of the motion, further says: "thereupon the court denied said motion to quash said panel and directed the trial to proceed, to which order the defendant then and there excepted. Be it further remembered that thereupon to maintain the issues upon the part of the state the following witnesses were sworn and testified, to-wit:" Then follows the evidence given upon the trial. It will be noticed that the record is silent as to when the motion to quash with reference to swearing the jury was made. It is elementary that when a jury is sworn without objection the defendant in a criminal case waives all irregularities in the manner and method of selecting the panel known to him at the time. It does not appear from the record that the objection to the jury or the motion to quash was based upon facts known to him before or which had come to defendant's knowledge after the jury was sworn. While the record is silent as to whether the motion was timely, every presumption will be indulged that the ruling was correct, and further that had the motion been made at the proper time, based upon substantial reasons, it would have been granted. It not appearing affirmatively from the bill of exceptions, which was prepared and presented for allowance by defendant's attorney, that the motion to quash the panel was made before the jury was sworn, and there being no showing to authorize the court to entertain the motion thereafter, the ruling of the court must be presumed to have been correct.

2. At the close of the State's case the defendant moved the court to instruct the jury to find the defendant not guilty, which motion was denied. This ruling of the court is assigned as error and may be considered in connection with another assignment of error, viz.: that the verdict is not sustained by sufficient evidence. The information charges that the defendant did "unlawfully, feloniously and burglariously break and enter into the dwelling house of Alexander Swanson and B. F. Roberts there situate and did then and there commit a felony, to-wit: did feloniously take, steal and carry away one bridle of the value of thirty dollars, and one overcoat of the value of five dollars, the personal property of said B. F. Roberts, then and there being, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Wyoming."

The only evidence offered in the case is that offered by the State. It appears from the record that there was evidence tending to prove that Alex Swanson had filed under the provisions of the United States land laws on a homestead in Fall River Basin, Uinta County, Wyoming; that he had constructed a log cabin upon the land and which was used and occupied as a dwelling house; that the country was sparsely settled; that he followed the occupation of trapping in the winter; that he had a partner, Mr. Roberts, in trapping during the fall and winter of 1904, who had for a short time prior to the alleged burglary lived and occupied the cabin with him; that Roberts had a trunk in the cabin ...