State v. Bates

• Decision Date: 03 October 1941
• Docket Number: 6919
• Citation: 117 P.2d 281,63 Idaho 119
• Parties: STATE, Respondent, v. WILBUR BATES, Appellant
• Court: Idaho Supreme Court

117 P.2d 281

63 Idaho 119

STATE, Respondent, v. WILBUR BATES, Appellant

No. 6919

Supreme Court of Idaho

October 3, 1941

CRIMINAL LAW-"PERSISTENT VIOLATOR"-LARCENY-EVIDENCE-POSSESSION OF STOLEN PROPERTY.

1. Under statute providing that upon conviction for the third time of commission of a felony one shall be considered a persistent violator, where defendant had been convicted of a felony three times prior to present prosecution, so that if convicted in present prosecution it would be his fourth conviction, defendant, if convicted, would be a "persistent violator" within statute. (I. C. A sec. 19-2414.)

2. The unexplained possession of stolen property is a circumstance from which guilt of offense of larceny may be inferred.

3. In prosecution for grand larceny of an automobile, where there was uncontradicted evidence that defendant was not with his cousin at time cousin took automobile, there was no evidence indicating defendant had anything to do with initial taking of automobile, and there was no evidence showing defendant participated with cousin in the trip on which they were apprehended except as a passenger, evidence of defendant's possession of automobile was insufficient to bring into play the rule that recent unexplained possession of stolen property was a circumstance from which guilt of offense of larceny could be inferred.

4. Where evidence was insufficient to support conviction of grand larceny of an automobile, conviction would be reversed and case remanded with instructions that trial court either grant a new trial, or dismiss the charge, in his discretion after hearing prosecuting attorney as to the probability of producing any further or additional evidence on a new trial.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Thomas E. Buckner, Judge.

Appeal from conviction of grand larceny. Reversed and remanded.

Reversed and remanded with instructions.

Dunlap & Dunlap, for Appellant.

If a defendant had no part in taking the property, his subsequent connection with it, even his assistance to the thief in carrying it away, or secreting it, will not render him guilty of larceny, except in those jurisdictions where the rule obtains that a receiver of stolen goods may be prosecuted as an accessory to the larceny. (36 C. J. 748; People v. Disperati, 105 P. 617, 11 Cal. A. 469; State v. Rechnitz (Mont.) 52 P. 264; State v. Hill (Ore.) 128 P. 444; Pass v. State (Ariz.) 267 P. 206.)

The general rule that the possession of stolen property is evidence of guilt, is limited by the rule that to warrant an inference of guilt it must be shown that the possession is personal, and that it involves a distinct and conscious possession by the accused. (State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902; State v. Vanek, 59 Idaho 514, 84 P.2d 567.)

Our law defines a persistent violator as a person who has been convicted for the third time of a commission of a felony and limits the power and authority to punish as such to the third conviction and not otherwise. (Section 19-2414, Idaho Code Annotated.)

Bert H. Miller, Attorney General, J. R. Smead, Leo Bresnahan, Robert M. Kerr, Jr., M. Casady Taylor, Assistant Attorneys General, for Respondent.

Unexplained possession of recently stolen property is a circumstance to be considered by the jury from which guilt of the defendant may be inferred. (State vs. Jackett, 45 Idaho 720, 264 P. 875; State vs. Sanford, 8 Idaho 187, 67 P. 492; State vs. Bogris, 26 Idaho 587, 144 P. 789; State vs. Vanek, 59 Idaho 514, 84 P.2d 567.)

To construe Section 19-2414, Idaho Code Annotated, to apply solely to third and not subsequent convictions would be to nullify the effect and defeat the purpose of the statute. (I. C. A. Section 19-2414; 24 Corpus Juris Secondum, Section 1958, P. 1143; 25 Am. Jur. P. 260; State vs. Vandetta, (W. Va.), 150 S.E. 736.)

GIVENS, J. BUDGE, C.J., and MORGAN, HOLDEN and AILSHIE, JJ., concur.

OPINION

GIVENS, J.

On his appeal from conviction of the grand larceny of an automobile and being a persistent violator appellant assigns two errors. The first one is that prior to the present prosecution he had been convicted of a felony three times, this would therefore be his fourth conviction, and he could not be a persistent violator because section 19-2414 I. C. A. provides that upon conviction for the third time of the commission of a felony one shall be considered a persistent violator. Obviously the legislature never intended by such statute that one would be a persistent violator upon the conviction of a third offense but not upon a fourth or any subsequent one. (State v. Vandetta, 108 W.Va. 277, 150 S.E. 736.) This assignment is therefore without merit.

The second assignment of error is that the evidence is insufficient to sustain the verdict in that it is not shown appellant participated in or had anything to do with the larceny of the automobile in question. As against this contention the state urges that the recent unexplained possession of stolen property is a circumstance from which the guilt of the accused may be inferred. Such is undoubtedly the law in this state. (State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Marquardsen, 7 Idaho 352 62 P. 1034; State v. Sanford, 8 Idaho 187, 67 P. 492;...