State v. Bowen

• Decision Date: 25 August 1914
• Docket Number: 2596
• Citation: 143 P. 134,45 Utah 130
• Court: Utah Supreme Court
• Parties: STATE v. BOWEN

143 P. 134

45 Utah 130

STATE v. BOWEN

No. 2596

Supreme Court of Utah

August 25, 1914

Appeal from District Court, Fifth District, Hon. Joshua Greenwood Judge.

Henry Bowen was convicted of larceny. He appeals.

AFFIRMED.

J. W N. Whitecotton for appellant.

A. R Barnes, Attorney General, and E. V. Higgins and G. A. Iverson, Assistant Attorneys General, for the State.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The defendant was convicted of a larceny of a cow. The case was here on a former appeal. 43 Utah 111; 134 P. 623. The defendant, on a second trial, was again convicted, and again appeals. He questions the sufficiency of the evidence. Though there is no direct evidence of the taking, still sufficient is shown to show the larceny. The principal question relates to the sufficiency of the evidence to connect the defendant with it. The cow was last seen on the range in September. The defendant, a ranchman, lived in that vicinity. In January following, the hide of the cow in question was found in his possession, nailed to the wall of his corral. He gave two explanations of his possession. One was that he had taken the hide from a cow belonging to him, a cow he had slaughtered for beef. Several days thereafter, about the time of his arrest, he stated that his son had taken the hide from a cow killed on a railroad track, and identified the carcass from which he claimed the hide had been taken. The State proved that the hide found in the defendant's possession was the hide of the subject of the larceny. It further proved that the carcass so identified by the defendant, and from which he claimed his son had taken the hide, was not the carcass of the cow in question. The defendant offered no evidence. There is therefore no evidence to support either claim of the defendant.

We have a statute (Comp. Laws 1907, Sec. 4355) which provides that "possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt." Under that statute, in the absence of direct evidence of the taking, the State, to make a prima facie case, is required to prove the larceny, recent possession in the accused, and an unsatisfactory explanation. State v. Potello, 40 Utah 56; 119 P. 1023; State v. Converse, 40 Utah 72; 119 P. 1030.

It is first claimed that the proof of the possession of the hide is not sufficient to prove the possession of the cow, the alleged stolen property. Hence it is argued that there is no proof that the stolen property was in the defendant's possession. But the State proved more than the defendant's mere possession of the hide. It adduced evidence to show (the defendant's statement) that the hide found in his possession was by him taken from a cow in his possession, one, as stated by him, belonging to him and which he had slaughtered for beef. And, since the State proved that the hide so found in his possession was the hide of the cow in question, there is evidence that not only the hide, but also the subject of the larceny, was in his possession.

The further claim is made that the possession was not sufficiently recent, a possession about four months after the cow was last seen on the range, to raise the presumption that the defendant did the taking. What is such a recent possession as to raise the presumption must depend upon the nature of the property and the circumstances of the particular case, and hence is ordinarily a question of fact. Of course the possession may be so remote as to require the court to say, as a matter of law, that it is not sufficiently recent to raise the presumption. Standing by itself, a possession as remote as four months can hardly be said to be recent. Lawson's Law of Presumptive Ev. p. 606; Dec. Dig. "Larceny," section 64 (3). Under the particular circumstances here, we think the question of recent possession was one of fact. Cent. Dig. "Larceny," section 181. The cow was last seen on the range in September. In January the hide was found in the defendant's possession, nailed to the wall of his corral. The cow was taken some time between those dates. The exact time is left uncertain. From the evidence the jury could have found that the cow was taken much less than four months from the time the hide was found in the possession of the defendant. Then there are the conflicting and groundless claims of the defendant concerning his possession. We say groundless, because the State adduced evidence to dispute them, and the defendant no evidence whatever to support them. So, when the nature of the property is considered, the uncertainty as to the time of the taking, the hide...