Sisson v. State

• Decision Date: 23 June 1914
• Docket Number: Criminal 354
• Parties: THOMAS J. SISSON, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

141 P. 713

16 Ariz. 170

THOMAS J. SISSON, Appellant, v. STATE, Respondent

Criminal No. 354

Supreme Court of Arizona

June 23, 1914

APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge. Affirmed.

The facts are stated in the opinion.

Mr. W K. Dial, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, For Respondent.

OPINION

FRANKLIN, C. J.

Appellant was convicted of the crime of grand larceny and sentenced to serve a term in the state prison. On application by the appellant, the learned judge of the trial court granted a certificate of probable cause for an appeal to this court. The case is now here for review on an appeal from the judgment and an order denying appellant's motion for a new trial. The charge in the information is grounded on the taking of a gelding alleged to be the property of one C. G. 10, an Apache Indian. The taking of the gelding in not denied, but the felonious intent of the defendant in taking the animal was the decisive issue in the trial of the case.

The defendant claimed that he took the animal having an honest belief that he had a right to take it. Though there was a decided conflict in the evidence on this phase of the matter, a brief resume of the testimony in behalf of defendant discloses: That he and one Pete Baca had purchased some horses from the Indians near the San Carlos reservation. That the prosecuting witness and Pete Baca each owned a buckskin gelding which in general appearance corresponded one with the other, and both animals seem to have strayed off, and each of the owners was making efforts to find his horse. The animal described in the information, it also appears, was found by one Joe Hinton at his corral, where he was pumping water. Hinton thought the horse found at his corral belonged to appellant and Baca, because he knew they had purchased some Indian horses, and this horse resembled one that they had purchased. Hinton advised appellant by letter that he had found his horse and had him in the corral, and requested appellant to come and get the animal. Appellant showed the letter to Baca, and the latter stated that the horse found was his horse, one that was purchased by Baca when he and appellant were at the reservation, but at a time when appellant was not present. Baca asked appellant to go to Hinton's place and get the horse for him, stating that he would pay appellant for the trouble of doing so. Appellant, believing the animal to be the property of Baca, went to Hinton's place and openly took the animal from the corral for the purpose of delivering it to the one he believed to be the owner thereof. This, in susbtance, is the explanation which appellant relied on for his defense to the charge.

If the appellant did in fact take the property having an honest belief as to his right to take it, the crime charged would of course lack the essential ingredient of felonious intent. It was thus within the province of the jury to determine, from all the evidence in the case, the bona fides of such claim of right. The court instructed the jury as follows:

"You are instructed that if you believe from the evidence that the defendant, Thomas J. Sisson, went after the animal alleged to have been stolen upon receipt of a letter from Joe Hinton, informing him that he had caught him and had him in his possession, and that he went after the animal to deliver him to Pete Baca, as requested by Baca, and that he honestly believed that the animal belonged to Baca, then it is your duty to acquit him."

The infirmity of this instruction is at once apparent. It places a burden upon the defendant in a criminal prosecution that the law does not authorize.

"A defendant in a criminal action is presumed to be innocent until the contrary be proved, and, in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted." Section 1036, Ariz. Pen. Code 1913.

"It is not necessary for the defendant to satisfy the jury that he was in fact the owner of the goods alleged to have been stolen, or that he took them under a bona fide claim of right. The burden is on the prosecution to establish the guilt of the defendant beyond a reasonable doubt, and this requirement is not satisfied, if the evidence leaves it in doubt whether or not the property taken was the defendant's, or whether the defendant honestly believed either that he was the owner or that he had a right to the possession." 18 Am. & Eng. Ency. of Law, 2d ed., p. 525.

"The charge given by the court, predicated on defendant's belief that he had a right to take the same, should have been given without imposing upon him the burden of proof; that is, the jury should have been instructed in connection with said charge, if they had a reasonable doubt whether or not the defendant believed he had a right to take the animal, they should acquit." Reese v. State, 43 Tex. Cr. 539, 67 S.W. 325.

In the case of State v. Weckert, 17 S.D. 202, 2 Ann. Cas. 191, 95 N.W. 924, the following instruction was before the court:

"In this case I charge you, as a matter of law, that if you are satisfied from the evidence that this defendant, Joseph Weckert, took the property in question from the corral . . . under an honest belief of ownership, although mistaken in this belief, then you would not be warranted in convicting this defendant, and it would be your duty, as jurors, to acquit him. In other words, where a defendant charged with larceny tells the jury, or where the jury becomes satisfied with the evidence, that the original taking of the property was made under an honest or mistaken claim of right to the property, it is the duty of the jury to acquit him, and, before you can convict the defendant in this case, the state must satisfy you from the evidence, beyond a reasonable doubt, that the defendant, by fraud or stealth, and with intent to deprive the owner of the property thereof, and knowing the same not to be his, took the property in the manner and form charged in the indictment."

The court commented on this instruction as follows:

"The accused contends that by this charge the court clearly instructed the jury that the burden was upon the accused of satisfying them that the taking of the horse by him was under the honest claim of ownership. We are of the opinion that the contention of counsel for the accused is correct. While it is true that in the latter part of the instruction the court does charge the jury that, before they can convict the defendant, the state must satisfy them of his guilt beyond a reasonable doubt, yet the former part of the instruction was not withdrawn from the jury, in which they were clearly instructed in effect that the burden was upon the accused to satisfy them that he took the property in question under an honest belief of ownership, although mistaken in that belief. This instruction was clearly erroneous, and in conflict with the provisions of section 7376, Compiled Laws of 1887, which reads as follows: 'A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.'"

See, also, state v. Huffman, 16 Or. 15, 16 P. 640; State v. Grinstead, 62 Kan. 593, 64 P. 49; Black v. State, 83 Ala. 81, 3 Am. St. Rep. 691, 3 So. 814; Evans v. State, 15 Tex. App. 31; Higginbotham v. State, 42 Fla. 573, 89 Am. St. Rep. 237, 29 So. 410; Johnson v. United States, 2 Okl.Cr. 16, 99 P. 1022; 25 Cyc. 49.

The authorities are abundant, and, we believe, substantially uniform, to the effect that the burden of proof is not upon the defendant charged with the crime of grand larceny to satisfy the jury that the taking was under a bona fide claim of right; it being sufficient to entitle him to an acquittal if the jury have a reasonable doubt arising from all the evidence in the case as to whether the defendant took the property having such an honest belief as to his right to take it. In other words, the felonious intent being an essential ingredient of the crime charged, if the taking is admitted, or proved beyond a reasonable doubt, nevertheless, if the jury entertain a reasonable doubt of the felonious intent of the defendant in taking the property, the jury should give him the benefit of such...