State v. Eubank

• Decision Date: 02 December 1903
• Citation: 33 Wash. 293,74 P. 378
• Parties: STATE v. EUBANK.
• Court: Washington Supreme Court

74 P. 378

33 Wash. 293

STATE v. EUBANK.

Supreme Court of Washington

December 2, 1903

Appeal from Superior Court, Whitman County; S. J. Chadwick, Judge.

H Eubank was convicted of stealing a horse, and appeals. Affirmed.

M. O. Reed and H. W. Canfield, for appellant.

Robert M. Hanna, for the State.

HADLEY J.

Appellant was charged with stealing, taking, and driving away one gray gelding of the value of $60, the property of one Charles Johnson. The jury returned a verdict of guilty as charged. A motion for new trial was denied, and judgment was entered upon the verdict, by the terms of which appellant was sentenced to serve a term of five years in the State Penitentiary. He has appealed from the judgment.

It is assigned as error that the court overruled a motion for nonsuit--in effect a motion for acquittal of appellant--at the close of respondent's case. It is urged in support of this assignment that the evidence had not shown the possession of the animal to have been recent; and that even recent possession, standing alone, is not sufficient to support a conviction for larceny. It is also asserted that the animal was not a range animal. The evidence for the state had shown that the animal had been running at large upon land but partially inclosed, through the middle of which ran the county road; that the character of the country was the same as any other open country, and animals came and went at their will. We think there was sufficient evidence for the jury that the animal came within the classification of range animals. Perhaps appellant's assertion that recent possession of itself is not sufficient to warrant a conviction is true, but it is at least a circumstance to be considered by the jury along with other circumstances in evidence. Other circumstances had appeared in the evidence of the state, and the possession shown by the testimony was sufficiently recent for the jury to consider it with all other evidence. In State v. Hyde, 22 Wash. 551, 564 61 P. 719, this court said of a similar motion; 'This motion is a general one, and only challenges the general sufficiency of the evidence; that is, says, in effect, there is a total failure of evidence. Upon a motion of this kind the only question raised is whether there is any evidence tending to prove the crime charged, not whether the evidence fails in some particular matters.' To the same effect is State v. Elswood, 15 Wash. 453, 46 P 727. We think the state had introduced evidence tending to prove the crime charged, and under the above rule the court did not err in denying the motion for nonsuit or acquittal.

Error is urged upon the following instruction given by the court 'If you find from the evidence that Charles Johnson was the owner of the gelding described in the information, and that said gelding was permitted to run on the range, proof of the further fact that said gelding was shortly thereafter in the possession of the defendant is sufficient to put upon defendant the burden of explaining such possession. The presumption, if any, arising from such fact of possession of range stock, if you find such fact from the evidence, is one of fact only, and is rebuttable, and such presumption is overcome whenever a reasonable explanation is made or arises from the evidence; that is, an explanation which you deem reasonable, considering all the facts and circumstances of the case, is given, and is not shown to be untrue.' It is first asserted that there was no evidence that the gelding was found in the possession of appellant shortly after the animal was permitted to run on the range. There certainly was evidence to the effect that appellant was in possession after the gelding was permitted to run on the range. Whether that possession was shortly afterwards was for the jury to determine. The term used by the court is indefinite as to time, and signifies practically the same idea as the common expression 'recent possession.' The testimony was to the effect that the possession was at least within a few months after the animal was permitted to run upon the range, and we see no prejudicial error in the instruction on the ground urged as above stated. It is further asserted as against this instruction that it states as a fact that the gelding was shortly thereafter in the possession of the defendant, and that such statement was an unlawful comment upon the evidence. We do not think the instruction is susceptible of such interpretation. After first stating to the jury that if they found from the evidence that the person named in the information was the owner of the animal, and that the gelding was permitted to run upon the range, the instruction then proceeds: 'Proof of the further fact that said gelding was shortly thereafter in the possession of the defendant is sufficient to put upon defendant the burden of explaining such possession.' The words 'proof of the further fact,' as used, did not say to the jury that proof of possession had been made, but the fair, and, we think, the only, reasonable inference from the context is that, if they found from the evidence that such proof had been made, then the burden of explaining it was upon the defendant. This is made clear by the succeeding portion of the instruction, when the court alluded to the presumption arising from the fact of possession of range stock, and added, 'If you find such fact from the evidence.'

A feature of the above instruction, not discussed by counsel we think should be mentioned here, in order that no apparent confusion may exist between this case and other decisions of this court in larceny cases. By the instruction in this case the burden of explaining possession is placed upon the defendant. The instruction, upon its face, apparently conflicts with the rule announced by this court in State v. Walters, 7 Wash. 246, 34 P. 938, 1098. An instruction in that case contained the following: 'In this case, if the jury believe from the evidence beyond a reasonable doubt that the property...