Minor v. State, 40927

Decision Date27 October 1958
Docket NumberNo. 40927,40927
Citation234 Miss. 140,106 So.2d 41
PartiesEugene MINOR v. STATE of Mississippi.
CourtMississippi Supreme Court

John B. Farese, Ashland, Robert B. Smith, Ripley, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant Eugene Minor was convicted in the Circuit Court of Lafayette County of grand larceny, for the theft of a Tower brand lumber edger, and was sentenced to three years in the state penitentiary. The State relies on the presumption arising from possession of recently stolen property. The question is whether the jury was warranted in finding, on circumstantial evidence alone, that the defendant's guilt was shown beyond a reasonable doubt and to the exclusion of every reasonable hypothesis. We think the State failed to meet its required burden of proof.

A lumber edger is a machine used in the sawmill business. The type involved in this case is about 16 feet long, 4 feet wide, and weighs 1,000 pounds. It consists of a frame, bearings, shaft, and two saws. Its purpose is to catch the lumber after it has been cut, to remove the bark from each side, and to cut the lumber into specified sizes. John Lee Robbins, the prosecuting witness, owned a Tower brand lumber edger, had been using it in the woods of Lafayette County, and left it there around December 10, 1953. When he returned on January 10, 1954, it had disappeared. He advised the sheriff of the loss and apparent theft, but it or one similar to it was not found for almost four years. In November 1957 Robbins saw the working parts of a Tower lumber edger on a sawmill operated by appellant south of Waterford in Marshall County. His testimony was to the effect that these parts, namely, the bearings, the shaft, and the saws, when combined with the frame and other parts found near a garage, comprised his lumber edger which was stolen January 1954, almost four years prior to that time.

The record contains considerable testimony of a conflicting nature attempting to identify the parts of the lumber edger found at defendant's sawmill and at the garage as being the same parts and the same edger which were stolen from Robbins four years before. All of the evidence as to all of the elements of the crime of larceny with which appellant is charged is purely circumstantial in nature. Where the evidence is exclusively circumstantial and not direct, it is well settled that the State must establish its case, not only beyond a reasonable doubt but also to the exclusion of every reasonable hypothesis of innocence. This principle is pertinent in this case.

The State offered no direct evidence that appellant took or carried away Robbins' lumber edger, with a felonious intent to steal the same. 32 Am.Jur., Larceny, Sec. 10. The State concedes the evidence is wholly circumstantial. It relies upon a presumption of guilt resulting from the possession of recently stolen property by accused. Possession must be shown to have been recently after the larceny, since mere possession of stolen property raises no presumption of guilt. The test of recency is whether the interval was 'so short as to render it morally or reasonably certain that there could have been no intermediate change of possession.' 52 C.J.S. Larceny Sec. 106; Jones v. State, 1853, 26 Miss. 247, 248; Davis v. State, 1874, 50 Miss. 86; Calhoun v. State, 1941, 191 Miss. 82, 2 So.2d 802.

Assuming the State's evidence, identifying the property in appellant's possession as being the stolen property, was sufficient for the jury to accept, we have found no case, and the State cites none, in which any court has ever held that a period of four years from date of theft to finding of the property warrants application of the presumption or inference of guilt. 52 C.J.S. Larceny Sec. 106. If the date of finding the property in appellant's possession, November 1957, would be the pertinent date, the presumption manifestly cannot exist, and the State must offer evidence that appellant feloniously took and carried away Robbins' lumber edger. The mere fact that it was then in appellant's possession would not raise any presumption of guilt.

However, appellant testified that he purchased the Tower lumber edger which was in his possession from Eugene Reed in 1945, and that it had been in his possession and custody since 1945, except a loan of it in 1954 to Goolsby, who had used it in Arkansas for two years and returned it to him in 1956. Eugene Reed confirmed appellant's testimony in this respect. He is a lumber purchasing agent for a company at Winona, and has been in the lumber business all of his life. Minor formerly worked for him, and in 1945 purchased from him a used Tower lumber edger. Reed said that Minor asked him to go to the garage where the edger was, and see if he could tell whether it was one Reed had sold him. Reed looked at it and said that he 'could not be positive * * * My honest opinion is that it is the edger.' Roy Newsom said that in 1952 Minor offered to loan him the edger, that he saw it then and later in 1954, and the edger in defendant's possession in 1957 was the same one.

Appellant's testimony is to the effect that he was in possession of the Tower lumber edger, which he bought in 1945 from Reed, in 1954 and subsequently. In other words, laying aside the balance of appellant's testimony, it could be asserted that the presumption applies here, because the appellant admitted he was in possession of a lumber edger in 1954. Whether the presumption would apply under such peculiar circumstances is doubtful, but we do not need to decide that question. There is another and controlling reason why the presumption as to recently stolen property cannot apply. The presumption cannot exist where accused's explanation of his possession is satisfactory, or at least raises a reasonable doubt of his guilt. 52 C.J.S. Larceny Sec....

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3 cases
  • Pearson v. State, 42825
    • United States
    • Mississippi Supreme Court
    • December 20, 1963
    ...by it, it is incumbent on the prosecution to show that the account is false.' The Court cited many cases. In the case of Minor v. State, 234 Miss. 140, 106 So.2d 41, this Court quoted from 52 C.J.S. Larceny & 110, as follows: 'Where accused gives a reasonable and credible explanation of his......
  • Rushing v. State, 55190
    • United States
    • Mississippi Supreme Court
    • December 5, 1984
    ...the jury may infer guilt. Harper v. State, 355 So.2d 314 (Miss.1978); Engbrecht v. State, 268 So.2d 507 (Miss.1972); Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958). In order to give rise to an inference of guilt from the fact of possession, the State has the burden of proving possession......
  • Smith v. State, 47355
    • United States
    • Mississippi Supreme Court
    • May 28, 1973
    ...short as to render it morally or reasonably certain that there could have been no intermediate change of possession.' Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958); Calhoun v. State, 191 Miss. 82, 2 So.2d 802 (1941); Davis v. State, 50 Miss. 86 (1874); Jones v. State, 26 Miss. 247 Appe......

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