State v. Darrah

• Decision Date: 11 May 1939
• Docket Number: 6669
• Citation: 92 P.2d 143,60 Idaho 479
• Parties: STATE, Respondent, v. CLARENCE DARRAH, Appellant
• Court: Idaho Supreme Court

92 P.2d 143

60 Idaho 479

STATE, Respondent, v. CLARENCE DARRAH, Appellant

No. 6669

Supreme Court of Idaho

May 11, 1939

CRIMINAL LAW-BURGLARY-CORPUS DELICTI-EVIDENCE-POSSESSION OF RECENTLY STOLEN PROPERTY.

1. Elements of "corpus delicti" are certain facts forming its basis and the existence of a criminal agency as to cause of them, and it is not essential to show that the crime was committed by the defendant to establish "corpus delicti."

2. Evidence that only person who had key to house left house with doors locked and upon return found front door unlocked and later found watch and watch case gone, and that the watch and watch case were later found in accused's possession was sufficient to prove "corpus delicti" of burglary.

3. Where fact of burglary is proved, accused's possession of the stolen property is evidence for jury, but such evidence is not sufficient to show guilt if accused's possession is reasonably explained by him unless the explanation is shown to be false.

4. Where fact of burglary was proven and accused's conscious possession of the recently stolen watch and watch case was also proven, but such possession was reasonably explained by accused by statement that he bought it from another, which statement was not shown to be false, evidence was insufficient to connect accused with burglary.

5. Instruction charging jury that if any burglary was committed it could not be in first degree but could only be in second degree, since there was no contention that alleged burglary was committed in night-time, was not prejudicially erroneous as telling jury there was evidence to sustain conviction of second degree burglary, especially where later instruction charged jury that court had not intended to express any opinion and that jury should disregard anything they thought was opinion of court.

6. Where recently stolen property was found in accused's possession and state introduced and relied upon a statement by accused which reasonably explained his possession, burden was upon state to show that such exculpatory evidence was false.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Isaac McDougall, Judge.

Conviction for crime of burglary. Reversed and remanded for new trial.

Reversed and remanded.

Black &amp Black, for Appellant.

There is a well settled principle of criminal law that a conviction for crime cannot be had unless the corpus delicti, that is the fact that a crime has been actually perpetrated is first established and where proof of corpus delicti is made by circumstantial evidence, it must be established by proof of such character as to exclude all uncertainty. (Sec. 17-3401, I. C. A.; State v. Vanek, 59 Idaho 514, 84 P.2d 567; State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902; State v. Burke, 11 Idaho 420, 83 P. 228.)

To warrant an inference of guilt from the possession of personal property charged to have been recently stolen, the property must be properly identified and must be offered in evidence and no such inference can arise where such property is available and in the possession of the prosecution and the same is not either sufficiently identified or offered or introduced into evidence and the failure to offer or introduce such evidence raises a presumption that such property was not stolen property. (Sec. 17-3401, I. C. A.; Underhill's Crim. Ev., 3d. ed., sec. 45; State v. Willson, 116 Ore. 615, 241 P. 843, 11 P. Dig., p. 332; State v. Vanek, supra; State v. Sullivan, supra; State v. Burke, supra.)

The state introduced in evidence an oral confession or admission of the defendant which contained an exculpatory statement. No evidence was introduced by the state to disprove or prove false this statement. It was therefore the duty of the court to instruct the jury on its own motion that the defendant was entitled to a verdict of not guilty unless the jury was convinced beyond a reasonable doubt that such exculpatory statement was either disproved or proved false by other evidence in the case. (Note 116 A. L. R. 1459; Otts v. State, 135 Tex. Crim. 28, 116 S.W.2d 1084, 116 A. L. R. 1454.)

J. W. Taylor, Attorney General, R. W. Beckwith, Assistant Attorney General, and M. E. Zener, Prosecuting Attorney for Bannock County, for Respondent.

The two elements of "corpus delicti" are: (1) Certain facts forming its basis, and (2) the existence of criminal agencies as the cause of them. To establish the "corpus delicti" it is not essential to show that the crime charged was committed by the defendant. (People v. Rodway, 77 Cal.App. 738, 247 P. 532; People v. Britt, 62 Cal.App. 674, 217 P. 767; People v. Flores, 34 Cal.App. 393, 167 P. 413; State v. Davis, 57 Idaho 413, 65 P.2d 1385.)

Refusal to advise a verdict of acquittal is not reversible error, and the court's action cannot be reviewed on appeal. (State v. Smith, 46 Idaho 8, 265 P. 666; State v. George, 44 Idaho 173, 258 P. 551; State v. Stevens, 48 Idaho 335, 282 P. 93.)

BUDGE, J. Givens, Morgan, Holden, JJ., and Ailshie, C. J., concurring. GIVENS, J., dissenting. Morgan, J., did not participate in the decision on rehearing.

OPINION

BUDGE, J.

Mrs. A. E. Gemmell, being alone in the house, of herself and her husband, at 855 West Sublette Street, Pocatello, left the home about 1 o'clock on the afternoon of August 13, 1938, and returned at 2 o'clock the same afternoon. She testified that when she left the home she hooked the front screen door and locked the front door and back door of the house. Upon returning she entered the house through the back door after unlocking it and about one hour later discovered the front door was unlocked and the screen unhooked. No one had a key to the front door excepting herself. When Mrs. Gemmell was preparing to retire for the night, about 10 o'clock, she took a ring off her finger for the purpose of placing it in a watch case, which was her usual custom, when she discovered that the watch case and her watch were gone. Mrs. Gemmell testified she had seen the watch and the case on the dresser just before leaving the house at 1 o'clock that afternoon. August 14th, two Union Pacific Railway agents saw appellant in the railroad yards and appellant upon seeing them fled but was overtaken and apprehended by the agents and delivered to the custody of the city police. While being taken to the city jail appellant pointed to an automobile, stating: "that is my automobile or car there." This automobile was later transported to the city police department after appellant had given officers the car keys. Officer Williams and other officers, upon receiving a key from appellant opened a padlocked suitcase belonging to appellant and found in his automobile. In the suitcase was found the watch and watch case identified by Mr. and Mrs. Gemmell as the watch and watch case belonging to Mrs. Gemmell, last seen by her at approximately 1 o'clock August 13th on her dresser. Appellant first offered the explanation that the watch and case had belonged to his mother and she had given it to him ten years before. When it was suggested by an officer that he could establish that the watch had been sold less than ten years ago, appellant offered a second explanation that: "He would tell the truth now, that it was not his mother's watch, that he had bought it out near the viaduct." This statement was made to and related by an officer. Appellant did not testify at the trial.

From the judgment of conviction appellant has appealed and assigns and relies upon eight assignments of error, all of which need not be considered. Assignments of error I to IV, inclusive, may be considered together, each of such assignments raising a part or all of the following propositions: Insufficiency of the evidence to support the judgment in that the state failed to prove; corpus delicti, or the fact that the crime of burglary had been committed, that appellant had committed the crime of burglary, or that appellant had stolen property in his possession.

Elements of corpus delicti are certain facts forming its basis and the existence of a criminal agency as to cause of them, and it is not essential to show that the crime was committed by the defendant to establish corpus delicti. (People v. Flores, 34 Cal.App. 393, 167 P. 413; People v. Rodway, 77 Cal.App. 738, 247 P. 532; People v. Britt, 62 Cal.App. 674, 217 P. 767.) This court in State v. Vanek, 59 Idaho 514, 84 P.2d 567, at 572, said:

"In the case at bar, the record shows, without contradiction, that the bridles and harness in question were in the Robbins barn on the 4th day of January, 1937, that they were taken from the barn without Robbins' knowledge or consent, that he identified them and that they were his property, which established the fact that the crime of burglary was actually committed by someone. And that brings us to the question (the corpus delicti having been proven). . . ."

The evidence herein discloses that Mrs. Gemmell left her home, after having locked the doors, and upon returning found the front door unlocked and about 10 o'clock that night found that the watch and watch case were missing. In addition there is evidence that no one other than Mrs. Gemmell had a key to the house and that immediately before leaving she had seen the watch and watch case on her dresser and the watch and watch case found in appellant's suitcase were identified as Mrs. Gemmell's property. This evidence was sufficient to prove the corpus delicti, establishing that there was a burglarious entry of the house and that the watch and watch case were removed through a criminal agency.

The serious question presented upon this appeal is the sufficiency of the evidence to prove that appellant committed the crime of burglary. The corpus delicti was proven, that...