State v. Collett

• Citation: 75 P. 271,9 Idaho 608
• Parties: STATE v. COLLETT & IRELAND
• Decision Date: 11 February 1904
• Court: United States State Supreme Court of Idaho

75 P. 271

9 Idaho 608

STATE v. COLLETT & IRELAND

Supreme Court of Idaho

February 11, 1904

DESCRIPTION OF PROPERTY IN INFORMATION-WHEN SUFFICIENT-CONFLICTING INSTRUCTIONS-NEW TRIAL NOT GRANTED WHEN.

1. An information that charges the larceny of one horse is not repugnant to section 7679 of the Revised Statutes, for want of sufficient description.

2. An instruction charging that the possession of recently stolen property is in law a strong criminating circumstance tending to show guilt unless the evidence and the facts and circumstances proved show that they may have come honestly into possession of the same, is not error neither is it in conflict with a charge that possession of stolen property recently after the theft, if unexplained, is a circumstance tending to show the guilt of the possessor. Still, in this case, if the jury believe from the evidence that the defendants were placed in possession of the property by others, and were honestly employed to deliver said property into the possession of another, and were, at the time of their arrest, openly and publicly carrying out the conditions of their employment, this is a satisfactory account of the possession of the animal in question.

3. Where there is a substantial conflict in the evidence on the material issues involved, a new trial will not be granted.

(Syllabus by the court.)

APPEAL from the District Court of Fremont County. Honorable J. M Stevens, Judge.

Defendants were convicted of the crime of grand larceny and appealed from the judgment and order overruling the motion for a new trial. Judgment affirmed.

Affirmed.

Briggs & McCutcheon and Chalmers & Jones, for Appellants.

This is a prosecution upon a charge of grand larceny, under section 7048 of the Revised Statutes of Idaho the allegation being that the defendants "did feloniously, etc., steal, etc one horse, then and there being the personal property of S. H. Davis." The accusation being of the larceny of "one horse," and the possession thereof being admitted, the defense was and is that the defendants came honestly and innocently into possession of the animal, and that neither of the defendants was at the residence or on the range or near the horse of S. H. Davis at the time it was taken from his possession, but that they were both at other places. The verdict is not supported by the evidence, for the following reasons and in the following respects: (a) There is no evidence connecting or tending to connect the defendants or either of them with the larceny of the horse described in the information herein other than the fact or circumstance that the defendants were found on their way to Virginia City, Montana, with said horse in their possession, and the manner in which they came into possession of the said animal is fully explained by unimpeached and uncontradicted testimony, being the explanation of the defendants themselves, corroborated by that of other witnesses and circumstances. It may be observed here that there is in the record no direct or positive evidence whatever even tending to contradict the explanation by defendants of their possession of the stolen horse. Evidence in explanation of such possession may fall short of a satisfactory explanation, and yet be sufficient to acquit. If it creates a reasonable doubt, it practically rebuts the presumption of guilt. (3 Rice on Evidence, p. 734, citing Clackner v. State, 33 Ind. 412; Way v. State, 35 Ind. 409; Smith v. State, 58 Ind. 340; Lunsford v. State, 29 Tex. App. 205, 15 S.W. 204; Holley v. State, 21 Tex. App. 156, 17 S.W. 159; Reveal v. State, 27 Tex. App. 57, 10 S.W. 759; Johnson v. State, 5 Lawson's Criminal Defenses, 606; Saltillo v. State, 5 Lawson's Criminal Defenses, 625.) "Unexplained possession of recently stolen property does not raise a legal presumption of guilt, and shift the burden of proof upon the accused, but is merely a fact from which guilt may be inferred." (State v. Hale, 12 Or. 352, 7 P. 523; 6 Lawson's Criminal Defenses, 1048; People v. Antonio, 27 Cal. 404; Ballamy v. State, 35 Fla. 242, 17 So. 560; Conkwright v. People, 35 Ill. 204; Hoge v. People, 117 Ill. 35, 6 N.E. 796.) "The bare possession of property recently stolen is not conclusive evidence of guilt. Especially is this so of property of the kind involved in this case." (State v. Seymour, 7 Idaho 257, 61 P. 1033.) Upon the insufficiency of the information the authorities cited by appellants are cited and commented upon in the opinion.

Attorney General John A. Bagley, for the State.

Upon the sufficiency of the information the authorities cited are nearly all cited in the opinion. Presumption from unexplained possession of recently stolen property is a presumption of law. Mr. Greenleaf makes the following statement: "Possession of the fruits of crime recently after its commission is prima facie evidence of guilty possession, and, if unexplained either by direct evidence or by the attending circumstances, or by the character and habits of life of the possessor or otherwise, it is taken as conclusive." (1 Greenleaf on Evidence, sec. 34; State v. Kelly, 73 Mo. 608; State v. Good, 132 Mo. 114, 33 S.W. 790; Belote v. State, 36 Miss. 96, 72 Am. Dec. 163; Blashfield's Instructions to Juries, sec. 330.)

STOCKSLAGER, J. Sullivan, C. J., Ailshie, J., concurring.

OPINION

STOCKSLAGER, J.

The defendants were jointly charged with a felony; they were convicted and each sentenced to serve a term of three years in the state penitentiary. A motion for a new trial was made which was overruled by the court, from which order defendants appeal; they also appeal from the judgment. The information, after the preliminary statement, charges: "That Samuel L. Collett and Samuel Ireland, on or about the thirteenth day of June, A. D. 1903, at the county of Fremont, in the state of Idaho did commit the crime of grand larceny, committed as follows, to wit: Did willfully, unlawfully, and feloniously steal, take, lead, drive and carry away one horse, then and there being the personal property of S. H. Davis, contrary to the form, force and effect of the statute in such case made and provided, and against the power, force and dignity of the state of Idaho." Then follows the allegation that defendants had an examination before an officer authorized to hold such examinations, and were held to answer. To this information a demurrer was interposed by the defendants: "1. That the information does not state facts sufficient to constitute a public offense. 2. That the information does not substantially conform to the requirements of section 7679 of the Revised Statutes of Idaho in this: That the information is not direct and certain as to the particular circumstances of the offense charged, and that no description of the property alleged to have been stolen by the defendants is given in the information by which the said property could be identified."

This demurrer was overruled by the court, which is assigned as error. The information charges that the defendants, naming them, on or about a certain date did willfully, unlawfully and feloniously steal, take, etc., one horse, the property of S. H. Davis. We think this language is sufficient to charge a public offense, and the demurrer, so far as this ground was concerned, was properly overruled. Counsel for appellant in their brief and also in the oral argument insist that the description of the property is insufficient as contained in the information, and that for that reason the demurrer should have been sustained. A large number of authorities are cited by appellant in support of this contention and we have examined them with interest and care. It is insisted that the information does not comply with the provisions of sections 7677 and 7679 of the Revised Statutes. Section 7677 says: "The indictment must contain: 1. The title of the action specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended."

Section 7679 says: "It must be direct and certain as it regards: 1. The party charged; 2. The offense charged; 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense."

We think a careful reading of the information will disclose that every provision of these two sections were complied with. The defendants were notified that they were charged with the larceny of one horse, the property of S. H. Davis; that said charge is lodged in the district court of Fremont county, and on or about the time the larceny was committed. As we view it, all the elements of the crime are charged to these defendants, and hence the information was a statutory charge of larceny.

In Territory v. Shipley, 4 Mont. 468, 2 P. 313, it is said: "Where in an indictment the stolen property is described as sundry bank bills issued on the authority of the United States, usually known as 'greenbacks,' amounting in all to the sum of $ 589, such description is not sufficient to support the indictment or enable the jury to determine that the stolen chattels were the same referred to in the indictment. The number, kind and denomination of the bills ought to be given or a good and sufficient excuse for not doing so set forth in the indictment."

People v. Ellenwood, 119 Cal. 166, 51 P. 553, was an indictment charging the defendant with making and passing a fictitious check. People v. Ward, 110 Cal. 369, 42 P. 894, was an indictment charging the defendant with the crime of bribery. It was held that an indictment which charged that defendant did "give a bribe" to a certain supervisor with intent to corruptly...