State v. Davis

• Decision Date: 24 February 1937
• Docket Number: 6366
• Citation: 57 Idaho 413,65 P.2d 1385
• Parties: STATE, Respondent, v. CLIFF DAVIS, Appellant
• Court: Idaho Supreme Court

65 P.2d 1385

57 Idaho 413

STATE, Respondent, v. CLIFF DAVIS, Appellant

No. 6366

Supreme Court of Idaho

February 24, 1937

CRIMINAL LAW-LARCENY-POSSESSION OF STOLEN PROPERTY-CREDIBILITY OF WITNESS-INSTRUCTIONS-CORRECTION OF ERROR IN INSTRUCTION-APPEAL-CONCLUSIVENESS OF VERDICT.

1. Charge that the jury could totally disregard testimony of witness if jury believed that witness had wilfully sworn falsely regarding material matter held not error.

2. In prosecution for larceny of cow found in defendant's possession soon after it was missed, instruction that defendant, to secure an acquittal, was required only to produce such evidence and to such degree of certainty as will, when whole evidence is considered, create reasonable doubt of defendant's guilt held not prejudicial error, in view of immediately preceding instructions, as against contention that instruction required defendant to produce exculpatory evidence, whereas state's evidence might create reasonable doubt.

3. Possession of recently stolen property is circumstance from which, when unexplained, guilt of accused may be inferred.

4. Admission of testimony elicited from accused's witness on cross-examination without objection held not error.

5. In prosecution for larceny of a cow, admission of testimony of state's witness referring to his neighbor who had lost cow held not erroneous as introducing other offenses, where only connection between such loss and defendant's offense was made on cross-examination by accused and accused's own statements showed the connection.

6. Where question is whether accused's explanation of his possession of fruits of larceny is reasonable, reviewing court is not justified in substituting its opinion for that of jury, unless it finds that accused's explanation was so clearly satisfactory that it was unreasonable of jury to refuse to give it credence.

7. Evidence sustained conviction of grand larceny of cow found in accused's possession, despite testimony explaining possession.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Appeal from judgment of conviction of the crime of grand larceny. Affirmed.

Affirmed.

John D Whitney and George Donart, for Appellant.

An instruction in the following language is erroneous:

"If you believe from the evidence that any witness has wilfully sworn falsely in his testimony in this trial, regarding any material matter testified to by such witness, then the jury may totally disregard the testimony of such witness, except insofar as he is corroborated, to your satisfaction, by other and credible evidence, or by facts and circumstances proved on the trial." (State v. Boyles, 34 Idaho 283 200 P. 125; 16 C. J., sec. 2291, pp. 930, 931.)

While possession of stolen property unexplained is evidence of guilt, where reasonable explanation is given and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury cannot arbitrarily ignore such evidence, and the defendant is entitled to acquittal. (State v. Seymour, 7 Idaho 257, 61 P. 1033; Shaw v. State, 13 Okla. Cr. 511, 165 P. 617; State v. Marquardsen, 7 Idaho 352, 62 P. 1034; 36 C. J. 877, 878.)

An instruction which expressly or impliedly places upon the accused the burden of satisfying the jury that his possession of stolen property was honestly acquired or was acquired in some other way than by larceny, is erroneous. (36 C. J. 942; State v. Kimes, 145 Iowa 346, 124 N.W. 164; State v. Wagner, (Mo.) 252 S.W. 695; Robb v. State, 35 Neb. 285, 53 N.W. 134; People v. Ah Ki, 20 Cal. 177.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Instruction 21 is not erroneous in including the words "to your satisfaction." This question has been directly examined and determined against the position of appellant, in this court repeatedly. (Baird v. Gibberd, 32 Idaho 796 (800, 801), 189 P. 56; State v. Brassfield, 40 Idaho 203, 232 P. 1; State v. Waln, 14 Idaho 1 (3), 80 P. 221; State v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Muguerza, 46 Idaho 456, 268 P. 1.)

Possession of recently stolen cows raises a presumption of fact, or permits an inference in fact, of guilt, unless explained; whether the possession is sufficiently explained is a question of credibility and is exclusively a question for the jury. (State v. Ireland, 9 Idaho 686 (692), 75 P. 257; State v. Janks, 26 Idaho 567, 144 P. 779; State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902; State v. Collett & Ireland, 9 Idaho 608, 75 P. 271; State v. Wright, 12 Idaho 212, 85 P. 493.)

It is the well-established law of this state that a defendant may not stand by and observe prejudicial conduct without objection during a trial, and then complain of such conduct on appeal. (State v. Baker, 28 Idaho 727 (738), 156 P. 103; State v. Fox, 52 Idaho 474 (497), 16 P.2d 663; State v. Chacon, 36 Idaho 148 (154), 209 P. 889.)

GIVENS, J. Morgan, C. J., and Ailshie, J., concur. HOLDEN, J. (Dissenting).

OPINION

GIVENS, J.

Appellant on a charge of grand larceny, was convicted of the theft of a Jersey cow belonging to Mr. and Mrs. Frank J. Miller, taken May 26th, 1935, from Crescent Drive, which is a road approximately on the rim of the first bench southwest of Boise, and found approximately a month later in the pasture of one Schrecongost about 8 miles from Emmett.

The facts of the case will appear more in detail in connection with appellant's assignments of error considered seriatim.

The first assignment of error challenges the correctness of instruction No. 21 which was as follows:

"If you believe from the evidence that any witness has wilfully sworn falsely in his testimony in this trial, regarding any material matter testified to by such witness, then the jury may totally disregard the testimony of such witness, except insofar as he is corroborated, to your satisfaction, by other and credible evidence, or by facts and circumstances proved on the trial." because by this clause it delegated to the jury "the right not only to judge the weight and effect of testimony but to determine under what circumstances it might entirely disregard the testimony of a witness." But the discrimination was properly left to the jury because certainly the court should not draw the distinction, and since the jury must be satisfied of the truthfulness of the testimony, not the court, State v. McPherson, 49 Idaho 687, 291 P. 313, and the instruction required that the false testimony to render it nugatory must be wilful and intentional and that it must relate to a material fact, it was correct. (State v. Waln, 14 Idaho 1, 80 P. 221; Baird v. Gibberd, 32 Idaho 796, 189 P. 56; State v. Boyles, 34 Idaho 283, 200 P. 125; State v. Dong Sing, 35 Idaho 616, at 631, 208 P. 860; State v. Brassfield, 40 Idaho 203, at 210, 232 P. 1; State v. Muguerza, 46 Idaho 456, at 463, 268 P. 1; State v. Alvord, 47 Idaho 162, at 178, 272 P. 1010.)

Assignment of error No. 2 urges that instruction No. 8 placed upon appellant the burden of producing absolving explanatory evidence of (possession of recently stolen property) whereas if the State's evidence was such as to create a doubt as to the dishonesty of his possession, the defendant is entitled to an acquittal.

Instruction No. 19 admonished the jury to consider the instructions as a whole. In order therefore to get a proper perspective of instruction No. 8 it is necessary to read the two preceding instructions together, as follows:

"No. 6.

"The possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred.

"No. 7.

"If you believe from the evidence, beyond a reasonable doubt, that the property described in the information was stolen and that the defendant was found in the possession of the property after it was stolen, then such possession is in law an incriminating circumstance tending to show the guilt of the defendant, unless the evidence and the facts and circumstances thereunder show that he may have come honestly in possession of the same.

"In this connection, I further instruct you that if you find from the evidence beyond a reasonable doubt that the property described in the information was found in the possession of the defendant, then in determining whether or not defendant is guilty, you should take into consideration all of the circumstances attending such possession.

"No. 8.

"Even though you find from the evidence that the defendant was in possession of recently stolen property, the burden of proof is not upon the defendant to establish by a preponderance of the evidence that he came honestly into the possession of such property.

"All that is required of the defendant is that he produce such evidence and to such a degree of certainty as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of the guilt of the defendant. "

State v. Sanford, 8 Idaho 187, 67 P. 492, first announced that the possession of recently stolen property is a circumstance, from which, when unexplained, the guilt of the accused may be inferred, which proposition has been reaffirmed in State v. Bogris, 26 Idaho 587 at 601, 144 P. 789; State v. Jackett, 45 Idaho 720 at 723, 264 P. 875; State v. Yancey, 47 Idaho 1 at 6, 272 P. 495.

The court therefore properly instructed as it did in instruction No. 6, and appellant cannot complain that the court instructed the jury as to what if anything could or should have been considered by it, exculpating the defendant from the inference above stated.

It is true as appellant contends, that it is sufficient if the whole evidence raises a reasonable doubt as to the dishonesty...