State v. Burke

• Decision Date: 11 November 1905
• Citation: 11 Idaho 420,83 P. 228
• Parties: STATE v. BURKE
• Court: Idaho Supreme Court

83 P. 228

11 Idaho 420

STATE v. BURKE

Supreme Court of Idaho

November 11, 1905

BURGLARY-CIRCUMSTANTIAL EVIDENCE-INSUFFICIENCY OF EVIDENCE.

1. Evidence in this case examined and reviewed and held insufficient to support a verdict and judgment of conviction.

(Syllabus by the court.)

APPEAL from District Court in and for Nez Perce County. Honorable Edgar C. Steele, Judge.

Defendant was informed against and charged with the commission of the crime of burglary. From a judgment of conviction and an order denying a motion for a new trial defendant appealed. Reversed.

Judgment reversed and a new trial granted.

F. E Fogg and George W. Tannahill, for Appellant.

Each essential link in the chain of circumstances is the rule where the evidence is entirely circumstantial. (People v Phipps, 39 Cal. 326; People v. Ah Chung, 54 Cal. 403; People v. Smith, 106 Cal. 73, 39 P. 40; Schusler v. State, 29 Ind. 394; 23 Ency. of Law, 2d ed., 951; 1 Greenleaf on Evidence, sec. 34.)

J. J Guheen, Attorney General, Edwin Snow and F. S. Wettach, for Respondent.

The facts proven are, in the light of the cases, entirely sufficient to sustain the verdict. As bearing out this contention, we call the court's attention to a number of cases involving somewhat similar circumstances. (People v. Sears, 119 Cal. 267, 51 P. 325 (a case somewhat analogous to the one under consideration); (People v. Arthur, 93 Cal. 536, 29 P. 126; Harris v. State, 84 Ga. 269, 10 S.E. 742; People v. Wood, 99 Mich. 620, 58 N.W. 638; Burks v. State, 92 Ga. 461, 17 S.E. 619; Gregory v. State, 80 Ga. 271, 7 S.E. 222; State v. Tucker, 36 Or. 291, 51 L. R. A. 247, 61 P. 894; Magee v. People, 139 Ill. 138, 28 N.E. 1077; Harris v. State, 61 Miss. 304; Davis v. State, 76 Ga. 16; State v. Moore, 117 Mo. 395, 22 S.W. 1086.) Possession of stolen property, together with other evidence, is uniformly held to be sufficient to justify a conviction. (Ryan v. State, 83 Wis. 486, 53 N.W. 836.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J. concur.

OPINION

AILSHIE, J.

The defendant, David W. Burke, was charged upon information jointly with his father, George Burke, with the crime of burglary. He entered the plea of not guilty, and upon a separate trial was convicted of burglary in the first degree and sentenced to a term in the penitentiary. All the evidence produced by the state upon the trial was substantially as follows: That George Burke, the father of the defendant, was residing upon a farm near the town of Mohler, in Nez Perce county, and the defendant, who had been stopping with his father for a couple of weeks, was employed to assist in the farm work, but had no interest in the farm or the business nor in any of the property about the farm, except as an employee. Upon an adjoining farm was situated a farmhouse and granary belonging to one L. M. Englehorn. On the night of April 9, 1904, the granary, which up to that time had contained a considerable quantity of barley and oats, was burned. It is not known at what hour in the night the fire occurred, but about 7 o'clock the next morning it was discovered the building had been burned. Englehorn and other neighbors who gathered in the next morning discovered the tracks of a man from the granary to the road, and it appeared that the person had made frequent trips back and forth, and they also found the track of a wagon that had driven up during the night and where sacks had been placed on the ground previous to loading. The tracks of the wagon were much heavier from the time they left the place where the grain appeared to have been loaded than they were in driving up to the gate. They followed these tracks from that point on along the public highway to where they turned into the residence of George Burke. Following these tracks they found the wagon at George Burke's place, and on the floor of the wagon-box found some scattered barley. They also found twenty or twenty-five sacks of barley in George Burke's granary which did not belong to him and which he did not claim. They also found some pony tracks in the neighborhood of the burned granary which were identified as being very similar to the tracks made by a pony which the defendant, David Burke, rode on the following day. This pony did not appear to belong to the defendant but had been kept on the Burke place and really did not appear to belong to any of the Burke family. It seems uncertain, in fact, as to who was the owner of the pony--probably a young woman whom defendant married later. George Burke, who was jointly indicted with his son, was placed on the stand by the state and testified that he retired about 6 o'clock on the evening of April 9th, and that he knew of nothing that occurred between that and the next morning. He testified that he and his son were at home that night; that somebody had been killing his horses and that during the last two or three weeks he had had six horses and two hogs killed at nights, and that the horses had been killed by being stabbed just back of the ribs; that he had been up three or four nights watching the horses to keep anyone from injuring them, and that on this evening he was very tired and sleepy and retired early and sent his son, David Burke, to the barn to watch the horses; that on the morning of April 10th, when some of the neighbors came and inquired as to how much grain he had in his granary, he told them he thought he had about forty sacks in there, and that after an examination was made it was found there was twenty or twenty-five sacks of barley in the granary that he did not claim and did not own. He testified he did not know how the barley came into his granary. The defendant's stepmother testified on the part of defendant that defendant went to the barn early in the evening to watch the horses that night and that he returned to the house about 11:30 o'clock, and came into her room to get a lamp and lighted it and went upstairs to bed, and that to the best of her knowledge he did not leave his room until about 6 o'clock the next morning. Defendant testified that he stayed at the barn and watched the horses until about 11:30, when he came to the house and went to his room and went to bed, and that he had never been on Englehorn's place; had never been at his granary; that he knew nothing about the grain nor the burning of the granary. It also appeared that a considerable amount of grain, anywhere from fifty to one hundred sacks, remained in the granary and was still burning and smoldering the next morning when it was discovered that the granary had been burned. It was shown with reasonable certainty that from fifteen to twenty-five sacks of barley had been hauled on the night of the fire from the Englehorn granary to George Burke's granary and placed in the latter granary, and that the hauling was done on George Burke's wagon. There is no evidence tending to show with whose team the hauling was done. George Burke testified that he had one pretty good wagon harness but that the breast straps had been loaned and that one of the tugs was broken, and that all the other harness he had was plow harness. One witness testified that he passed the Englehorn premises between 11 and 12 o'clock the night of April 9th, and that the building was standing at that time, and that he reached home as the clock struck 12. It appears that the defendant and Englehorn had had no dealings with each other and were practically unacquainted. Englehorn testifies that he knew the defendant only by sight. So far as shown by the record, the defendant never made any claim upon this grain and never made any claim to having any grain on his father's place or in the granary, and it is not shown that he ever made any other or different statement than that he knew nothing about the removal of the grain or the burning of the granary. It also appears that previous to the trial on the charge of burglary that he had been tried upon the charge of arson for burning the granary and had been acquitted by a jury. The state showed by defendant on his cross-examination that he had been previously convicted of a felony in the state of Washington. This was done apparently for the purpose of impeaching the witness. The foregoing contains the substance of every fact and circumstance shown upon the trial.

Counsel for defendant took exceptions to various statements made by the prosecuting attorney upon the argument of the case before the jury, in which the prosecutor referred to the defendant as a man who had "shown himself not to be a law abiding citizen," and also to the statement where the prosecutor said: "Counsel wants to know who killed the horses; I do not know who killed the horses; it may have been that the man who killed the horses was the man who stole the grain. But gentlemen of the jury, I want to say to you that if...