State v. Brundage

• Decision Date: 14 July 1928
• Docket Number: No. 6120.,6120.
• Citation: 53 S.D. 257,220 N.W. 473
• Parties: STATE v. BRUNDAGE.
• Court: South Dakota Supreme Court

53 S.D. 257

220 N.W. 473

STATE

v.BRUNDAGE.

No. 6120.^*

Supreme Court of South Dakota.

July 14, 1928.

Appeal from Circuit Court, Charles Mix County; R. B. Tripp, Judge.

John Brundage was convicted of grand larceny, and he appeals. Affirmed.

Campbell, J., dissenting.Kirby, Kirby & Kirby, of Sioux Falls, for appellant.

Buell F. Jones, Atty. Gen., and Bernard A. Brown, Asst. Atty. Gen., for the State.

POLLEY, J.

Defendant was convicted of the crime of grand larceny. His motion for a new trial was denied, and he appeals to this court.

The larceny is alleged to have been committed in the town of Lake Andes in Charles Mix county on the night of September 16, 1924. The store of the G. F. Buche Company was entered, and merchandise consisting of silk goods, shirts, ladies' hose, handkerchiefs, and gloves to the value of about $2,000 was taken. On the 14th day of October following, a search of the residence of defendant at Primghar, in the state of Iowa, was made, and a portion of the goods that had been taken from the Buche store on the night of September 16th were found.

That the corpus delicti was established is not questioned, nor is it questioned that a part of the stolen goods were found in defendant's possession; but there was no direct evidence that he took any part in the actual theft or that he was within the state of South Dakota when the theft was committed, and it is contended by him that possession alone of a part of the stolen property at the time and under the circumstances shown by the evidence in this case is not sufficient to warrant an inference of guilt; that such possession constitutes only a circumstance or evidentiary fact tending to prove the larceny.

[1] While mere possession of recently stolen property is only a circumstance tending to prove the larceny, it is such a circumstance that calls for a satisfactory explanation of such possession by the accused. Upon this question the court instructed the jury as follows:

“Now, on this subject of recent possession of stolen property, if you should find beyond a reasonable doubt defendant was in possession of such property, and that possession was recent, the law is: If from the evidence you should be convinced beyond a reasonable doubt, as I have stated, that the property here in question was stolen, and that the defendant soon after its theft was in possession of it, that is a circumstance to be taken into consideration by you in making up your verdict, and unless such possession is satisfactorily explained, either by the defendant or by the facts and circumstances brought out upon the trial, it is sufficient upon which to base a conviction, provided upon the whole case you are satisfied beyond a reasonable doubt of the defendant's guilt, and that the value of the property stolen was in excess of $20.00. If, upon the other hand, you believe the possession of the defendant under the circumstances shown by the evidence is as consistent with his innocence as...