Gardner v. State

• Decision Date: 04 April 1921
• Docket Number: 960
• Citation: 196 P. 750,27 Wyo. 316
• Parties: GARDNER v. STATE
• Court: Wyoming Supreme Court

196 P. 750

27 Wyo. 316

GARDNER v. STATE

No. 960

Supreme Court of Wyoming

April 4, 1921

ERROR to the District Court of Laramie County; HON. WILLIAM C MENTZER, Judge.

Lee Gardner was convicted of larceny and brings error. The material facts are set forth in the opinion.

Reversed and remanded.

Kinkead & Henderson, for Plaintiff in Error.

There was not sufficient evidence to justify conviction; the court erred in refusing the one instruction requested by defendant. Careful search of the record will fail to disclose evidence of an incriminating character identifying defendant with the theft of the grain in controversy and we invite a careful inspection of the record in justification of this contention. There was evidence of defendant's good character and repute in the community in which he lived. The testimony on this point was given by a number of reputable citizens who had known defendant for from ten to twenty five years. The mere fact that defendant was in the employ of a person in whose granary the grain was found falls far short of connecting defendant with the theft, and that is the extent of the proof established on the part of the prosecution. The evidence is purely circumstantial and under the settled rule of law where the state relies upon circumstantial evidence for conviction, such evidence must point unmistakably to defendants guilt, and must be irreconcilable with any other rational hypothesis. 12 Cyc. 488; State v. Seiff (Mont) 168 P. 524; State v. Postal Co. (Mont.) 161 P. 953; State v. Chevigny, (Mont.) 138 P. 257; State v. Suitor (Mont.) 114 P. 112; Ann. Cas. 1912 C. 230; State v. Asbell (Kans.) 46 P. 770; Bryant v. State (Ala.) 23 So. 40; State v Mullins (Mont.) 173 P. 788; People v. Lapp. (Ill.) 118 N.E. 416. It must be entirely satisfactory and of such significance as to produce conviction beyond reasonable doubt. State v. Robinson, 103 A. 657. Where it merely raises suspicion it is insufficient. Fudge v. State (Fla.) 78 So. 510; State v. McCarthy (Mont.) 92 P. 521; State v. Taylor (Mont.) 153 P. 275. Where two persons have the same opportunity to commit an offense and there is doubt as to which committed it, neither should be convicted, Burton v. Corn, 94 S.E. 923. Suspicion is no proof nor conjecture evidence upon which courts can act in determining rights of parties. People v. Manganaro, 112 N.E. 436; Horn v. State, 12 Wyo. 157. The circumstances must be of such a character that they cannot be true and the defendant be innocent. Arnold v. State, 5 Wyo. 439. Unexplained posession of recently stolen property is a circumstance to be considered. Robinson v. State, 18 Wyo. 216. But it is only a circumstance and must be aided by other evidence, Roberts v. State, 11 Wyo. 66-84; Methard v. State, 19 Ohio St. 363. It must be shown that the possession was exclusive and that defendant was conscious of having the same in his possession, People v. Hurley, 60 Cal. 74; McNeeley v. State, 5 Wyo. 59; Defendant was not in control of the Netterfield place where the grain was found. Every act and circumstance proven was consistent with innocence. The record does not even recognize a suspicion of guilt, Com. v. Webster, 5 Cush. 295. Where the prosecution relies solely upon circumstantial evidence, the Court must always instruct upon the nature thereof, Territory v. Larmo, 46 P. 16; Renfro v. State, 198 S.W. 957; Winn v. State, 198 S.W. 965; Love v. State, 199 S.W. 623; Truner v. State, 4 Lea 206; Dawcett v. U. S. 41 P. 608; Com. v. Webster, 5 Cush. 317; Graves v. People, 32 P. 633; People v. Murray, 41 Cal. 66; People v. Phipps, 39 Cal. 326. The instruction asked by plaintiff in error was in substance that in order to sustain his conviction the circumstantial evidence must have proof of defendants guilt. That the jury must find him guilty to the exclusion of any other person; that it was insufficient that he was probably guilty, but the evidence must point unerringly to his guilt and be irreconciliable with his innocence; that the chain of circumstantial evidence must be complete. The instruction was refused and in this the Court committed error.

W. L. Walls, Attorney General, for Defendant in Error.

The trial court regarded the evidence sufficient to be submitted to the jury. The instruction offered by defendant is not law, Horn v. State, 12 Wyo. 56. The law only required that guilt be established beyond reasonable doubt. In Cornish v. Territory, 3 Wyo. 96 we find that the words "must be absolutely incompatible with the innocence of the accused" have been correctly defined to imply that proof of guilt must be established beyond the possibility of doubt. The rule laid down in the case of Pool ex el v. People, 80 N.Y. 645 was sustained in Cornish v. Territory. There is apparently no difference in the language. "Absolute certainty and unerring accuracy" are identical in their meaning in view of the above authorities. The instruction sought by defendant is contrary to law and was properly refused. Where the instructions do not cover all phases of the case, the complaining party is bound to call the court's attention to the omission by a request or be precluded from making such failure available as reversible error. The defendant requested the court to instruct the jury erroneously and did not bring himself within the purview of Section 6235 Comp. Stats. 1910. The court instructed the jury upon the material elements of the offense charged, as well as on the principle of reasonable doubt. While the evidence was circumstantial, it was apparently sufficient to convince the minds of reasonable men that defendant was guilty. The instructions of the court covered the case and the judgment should not be disturbed.

BLYDENBURGH, J. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLYDENBURGH, J.

The plaintiff in error, Lee Gardner, was informed against jointly with one Charles Netterfield, in the District Court of Laramie County, for the larceny of fifty bushels of macaroni wheat and four sacks of grain screenings, of the total value of $ 100, the property of George F. Chappell. The plaintiff in error, having demanded a separate trial, was separately tried by a jury which rendered a verdict of guilty. A motion for a new trial was filed, argued and denied, an exception to the ruling being duly taken and preserved, and the plaintiff in error sentenced to a term in the penitentiary. Nothing appears in the record to show what became of the case against the joint defendant, Charles Netterfield.

The petition in error filed in this court assigns as error only the denying of the motion for a new trial and the rendering of the judgment. The reasons stated in the motion for new trial are as follows:

1. That the verdict of said jury is not sustained by sufficient evidence.

2. That said verdict is contrary to law and the instructions of the court.

3. For errors of law occurring at the trial as follows:

a. The court erred in overruling the defendant's motion for a directed verdict made on the close of the state's evidence.

b. The court erred in overruling the motion made by defendant at the close of the defendant's case and before the case was submitted to the jury, to the overruling of said motions, and each of them, the defendant duly excepted at the time.

c. The court erred in overruling the motion made by defendant after the close of the case, and before the jury was instructed, for the court to instruct the jury upon the effect of possession or lack of possession of alleged stolen personal property, and with reference to the necessity of the proof where the evidence is wholly circumstantial, said motion being as follows, to-wit: "The defendant now moves the court to instruct the jury specifically on the question as to the importance of the question of possession or lack of possession of said property in defendant, and to instruct the jury that unless they shall find that the defendant was in possession of the property, that his possession was exclusive and conscious, that there could be no conviction."

d. The court erred in refusing to give instruction No. 15 asked by the defendant, exception to which refusal was duly taken by the defendant, said Instruction Number 15 being as follows, to-wit: "In order to convict the defendant in this case it will be essential for you to find from the evidence beyond a reasonable doubt that the defendant did steal, take and carry away the grain of George F. Chappell in the manner as set forth in the information herein. It is not sufficient that he might have been guilty of the crime, nor could you convict him if you merely found that he was probably guilty thereof, the evidence must point unerringly to his guilt, and must be irreconcilable with innocence. If under the evidence in this case any other person might have been guilty of the crime instead of the defendant, you must acquit the defendant, and unless the entire chain of circumstantial evidence is so connected, complete and compelling as to satisfy your minds of defendant's guilt beyond a reasonable doubt, then you should acquit him."

It will be seen from the foregoing that although the motion for a new trial alleged error in the court's "overruling the motion made by defendant after the close of the case, and before the jury was instructed, for the court to instruct the jury upon the effect of possession or lack of possession of alleged stolen personal property, and with reference to the necessity of the proof where the evidence is wholly circumstantial", the motion as set out in the motion for new trial make no mention of the matter of circumstantial evidence other than the possession or lack of possession of the property. The errors alleged therefore, are that the court erred in refusing to give Instruction Number 15 as...