State v. Grimmett

Decision Date01 July 1920
Citation33 Idaho 203,193 P. 380
PartiesSTATE, Respondent, v. W. J. GRIMMETT, Appellant
CourtIdaho Supreme Court

CRIMINAL LAW - EVIDENCE OF UNRECORDED BRANDS - CONSTITUTIONAL LAW-POWER OF LEGISLATURE TO DECLARE WHAT SHALL BE PRIMA FACIE PROOF-ACCOMPLICE.

1. Parol evidence of an unrecorded brand upon an animal may be introduced for purposes of identification, but not for the purpose of proving ownership by brand.

2. The power of the legislature to enact that proof of a given fact shall be prima facie evidence of another fact is limited by the rule that there must be some rational connection between the fact proved and the ultimate fact presumed, and, in criminal cases, that the evidence shall not be deemed conclusive.

3. An instruction that failure to retain in one's possession for thirty days the hides taken off of any cattle slaughtered by him is prima facie evidence of the commission by such person of the crime of grand larceny as to the cattle so slaughtered is error, since it permits a conviction of the crime of grand larceny without any proof of the corpus delicti.

4. An accomplice is a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission, or, not being present, has advised or encouraged its commission.

5. An accessory after the fact is not an accomplice in the commission of a crime.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Carl A. Davis, Presiding Judge.

From a conviction of the crime of grand larceny, defendant appeals. Reversed and remanded.

Judgment reversed and a new trial ordered.

Ed. R Coulter and Perky & Brinck, for Appellant.

There is a distinction between acts which may by statute be made prima facie evidence of certain facts and acts which cannot be given such effect without denying a defendant the due process of law. (Voght v. State, 124 Ind. 358, 24 N.E. 680; State v. Divine, 98 N.C. 778, 48 S.E. 477; People v. Cannon, 139 N.Y. 32, 36 Am. St. 668, 34 N.E. 759.)

"As to the presumptions, of course the legislature may go a good way in raising one or changing the burden of proof, but there are limits. It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate." (McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 36 S.Ct. 498, 60 L.Ed 899, see, also, Rose's U. S. Notes; State v. Griffin, 154 N.C. 611, 70 S.E. 292.)

The word "accomplice" includes all particeps criminis whether they are considered in strict legal propriety as principals in the first or second degree or merely as accessories before or after the fact. (Cross v. People, 47 Ill. 152, 95 Am. Dec. 474; In re Rowe, 77 F. 161, 23 C. C. A. 103; Polk v. State, 36 Ark. 117; Johnson v. State, 58 Tex. Cr. 244, 125 S.W. 16; Hudspeth v. State, 50 Ark. 534, 9 S.W. 1; Moynahan v. People, 63 Colo. 433, 167 P. 1175; Jones v. State, 59 Tex. Cr. 559, 129 S.W. 1118; Newton v. State, 62 Tex. Cr. 622, 138 S.W. 708; Stevens v. State, 111 Ark. 299, 163 S.W. 778.)

T. A. Walters, Former Attorney General, R. L. Black, Attorney General, James L. Boone, Assistant, and Geo. Donart, Prosecuting Attorney, for Respondent.

The instruction as to disposal of hide was proper and the statute is constitutional. (Logan & Bryan v. Postal Tel. & Cable Co., 157 F. 570; In re Sing Lee, 54 F. 334; Robertson v. People, 20 Colo. 279, 38 P. 326; State v. Cunningham, 25 Conn. 195; State v. Beach, 147 Ind. 74, 46 N.E. 145, 36 L. R. A. 179; State v. Sheppard, 64 Kan. 451, 67 P. 870; Meeker v. Lehigh Valley R. Co., 236 U.S. 412, Ann. Cas. 1916B, 691, 35 S.Ct. 328, 59 L. ed 644, see, also, Rose's U. S. Notes; State v. Converse, 40 Utah 72, 119 P. 1030; Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101, see, also, Rose's U. S. Notes; United States v. Yee Fing, 222 F. 154.)

An accessory after the fact is not an accomplice. (State v. Roberts, 15 Ore. 187, 13 P. 896; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Altwatter, 29 Idaho 107, 157 P. 256; State v. Edlund, 81 Ore. 614, 160 P. 534; Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 19 Ann. Cas. 140, 117 S.W. 253; People v. Collum, 122 Cal. 186, 54 P. 589; People v. Bunkers, 2 Cal.App. 197, 84 P. 364, 370; State v. Phillips, 18 S.D. 1, 5 Ann. Cas. 760, 98 N.W. 171.)

"The phrase 'prima facie evidence,' as used in the statute, is such evidence as in the judgment of the law is sufficient to establish the unlawful intent, and if it be credited by the jury, it is sufficient for that purpose, unless rebutted or the contrary proved; yet it does not make it obligatory on the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt." (Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Commonwealth v. Kimball, 24 Pick. (Mass.) 366; Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Griffin v. State, 142 Ga. 636, Ann. Cas. 1916C, 80, 83 S.E. 540, L. R. A. 1915C, 716.)

"There can be no serious doubt of the power of the legislature to change the rules of evidence and to prescribe different rules in different classes of cases subject to well-defined limitations. Laws which prescribe the evidential force of certain facts by enacting that upon proof of such facts a given presumption shall arise, or which determine what facts shall constitute a prima facie case against the accused casting the burden of proof upon him of disproving or rebutting the presumption, are not generally regarded as unconstitutional, even though they may destroy the presumption of innocence." (State v. Barrett, 138 N.C. 630, 50 S.E. 506, 1 L. R. A., N. S., 626; Wigmore, Ev., sec. 1354; Faith v. State, 32 Tex. 373; State v. Kyle, 14 Wash. 550, 551, 45 P. 147; State v. Anderson, 5 Wash. 350, 31 P. 969; State v. Lawson, 40 Wash. 455, 82 P. 750.)

RICE, J. Morgan, C. J., Budge, J., Concurring. BUDGE, J., Concurring in Part and Dissenting in Part.

OPINION

RICE, J.

The appellant was convicted of the crime of grand larceny of a certain cow, and appeals from the judgment.

It is contended by appellant that the court erred in permitting evidence to be introduced relative to an unrecorded brand upon the cow.

C. S., sec. 1920, provides: "All brands, earmarks and eartags shall be recorded with the department of agriculture. No evidence of ownership of stock by brand, earmark or eartag shall be permitted in any court of this state unless the brand or earmark or eartag be recorded as provided in this article."

C. S., sec. 1927, provides: "In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand, earmark or eartag of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, earmark or eartag, and that such owner is entitled to the possession of said animal at the time of the action: Provided, That such brand, earmark or eartag has been duly recorded as provided by law. Proof of the right of any person to use such brand, earmark or eartag shall be made by the copy of the record of same, certified to by the department of agriculture in accordance with the provisions of this article, or the original certificate issued to him by the department. Parol evidence shall be inadmissible to prove the ownership of a brand, earmark or eartag."

The evidence complained of was not introduced for the purpose of proving ownership by brand, but as a matter of identification. There is nothing in the statute to prevent the introduction of evidence of an unrecorded brand for such purposes. (State v. Henderson, 72 Ore. 201, 143 P. 627.)

Formerly, the statute forbade the use of evidence of an unrecorded brand, earmark or eartag for purposes of identification. (R. C., sec. 1228.) But by the amendment contained in 1913 Sess. Laws, chap. 171, p. 543, the prohibition against the use of such evidence for purposes of identification was omitted from the section.

The respondent requested the court to instruct the jury as follows:

"You are instructed that if you find from the evidence that the defendant slaughtered the animal mentioned in the information, or caused or procured the same to be slaughtered, within three years preceding the date of filing the information in this case and failed to retain in his possession the hide taken off such animal, with the ears attached thereto, without any alterations of the marks on the same and without any disfiguration of the brand on the hide, for a period of thirty days after the animal was slaughtered or killed, but on the other hand did sell or dispose of the hide, or cause the same to be sold or disposed of within thirty days after the animal was slaughtered or killed, or did disfigure the brand on the slaughtered animal such act and omission on the part of the defendant is prima facie evidence of grand larceny."

The trial judge noted that this requested instruction was denied because the law was given in the words of the statute (C. S., sec. 1948), and instructed the jury as follows:

"Any person who at any time slaughters or kills any cattle must retain in his possession the hide taken off such cattle with the ears attached thereto without any alteration of the marks on the same, or any disfigurement of the brand, for the period of thirty days after such cattle have been slaughtered or killed. Proof of the failure of any person to comply with the...

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