State v. Hall

• Decision Date: 04 February 1944
• Docket Number: 6588
• Citation: 145 P.2d 494,105 Utah 162
• Court: Utah Supreme Court
• Parties: STATE v. HALL

145 P.2d 494

105 Utah 162

STATE v. HALL

No. 6588

Supreme Court of Utah

February 4, 1944

Appeal from District Court, Third District, Salt Lake County; A. H Ellett, Judge.

For former opinion, see 105 Utah 151, 139 P. 2d 228.

Former opinion reversed, and judgment of the lower court affirmed.

Ray S McCarty, of Salt Lake City, for appellant.

Grover A. Giles, Atty. Gen., and Herbert F. Smart, Asst. Atty. Gen for respondent.

WOLFE Chief Justice. McDONOUGH and WADE, JJ., concur. MOFFAT, J., concurs in the result. LARSON, Justice, concurring in result--dissenting in part.

OPINION On rehearing.

WOLFE, Chief Justice.

This case was decided in an opinion found in Utah, 139 P.2d 228. A rehearing was granted and this opinion is the result of that rehearing.

The defendant, Ray Nuttall Hall, was convicted of the crime of grand larceny. On appeal he urges that the evidence is insufficient to sustain the conviction.

The information charged that the defendant stole from Strevell-Paterson Hardware Company one case of H-10 Champion Spark Plugs sometime between May 23rd and May 25th, 1942. The facts adduced show that about six weeks prior to the weekend of May 23rd, the date of the larceny charged in the information, another shipment of three cases of Champion Spark Plugs arrived in Salt Lake City for Strevell-Paterson. This shipment, which consisted of one case (500) Commercial 62's and two cases (1,000) H-10's, disappeared after it arrived at the docks of the Stordor Forwarding Company in Salt Lake City. This latter company handled l. c. l. shipments for various manufacturers including the Champion Spark Plug Company, and received this shipment for the purpose of delivering it to Strevell-Paterson. When these three cases disappeared, Strevell-Paterson ordered two cases of H-10's and one of Commercial 62's to replace them.

On Friday, May 22nd, these three replacement cartons arrived in Salt Lake City and were also received at the docks of the Stordor Forwarding Company. No attempt was made to deliver the plugs to Strevell-Paterson until Monday, May 25th. On Monday one of the cases of H-10 spark plugs was missing.

There is no evidence showing that anyone saw the defendant or anyone else take the spark plugs from the docks. The State, therefore, relied entirely on circumstantial evidence to prove all the elements of the crime. The defendant first asserts that the State failed to prove the corpus delicti. This contention is untenable. The evidence shows that these plugs were received on Friday, that they were handled in the customary manner and that one of the three cases was missing on Monday. Some six weeks earlier another shipment consisting of three cases of spark plugs also disappeared from the same docks under similar circumstances. The fact that two shipments of plugs disappeared within a six week period tends to negative any inference that they may have been mislaid and to give weight to the theory that both shipments were stolen. These facts alone might be sufficient to prove the larceny by someone, but we need not rely on them alone. In a prosecution for larceny, it is not essential that the corpus delecti be established by evidence independent of the evidence which is adduced to prove that the defendant was the perpetrator of the crime. The same evidence may be used to prove both. George v. United States, 1 Okla. Crim. 307, 97 P. 1052, 100 P. 46; State v. Marcy, 189 Wash. 620, 66 P.2d 846. Therefore, in addition to the above-stated evidence, we may consider the fact that at the time these plugs disappeared, it was very difficult for even a licensed wholesaler to purchase such plugs in lots of 500, and Strevell-Paterson had not had enough plugs for over a year to sell case lots of these plugs to the various dealers. Yet within two days after this last disappearance from the docks, one Sanford purchased 500 of such plugs at a price far below the market price--Sanford paid $ 45 for the 500 plugs; the price to a wholesaler was $ 165, to a dealer, $ 265, and to the consumer, $ 325. Sanford stated that he purchased the plugs from the defendant; this the defendant denied. The defendant had access to the docks at the time when both lots of these plugs disappeared. These facts would certainly warrant a finding by the jury that these plugs purchased by Sanford were "hot." The difficulty of obtaining case lots of such plugs gives them a character of uniqueness and supports the theory that these "hot" plugs were part of those missing from the docks and that they were missing from the docks because they had been stolen. We believe that the evidence is sufficient to warrant a finding by the jury that the plugs which disappeared on May 23rd as well as those which disappeared some six weeks earlier were stolen.

To connect the defendant with the crime charged the State relied primarily on the presumption of guilt which by virtue of 103-36-1, U. C. A. 1943, may be drawn from proof of possession of recently stolen property without satisfactory explanation of such possession. This section provides:

"Possession of property recently stolen, when the person in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt."

The defendant contends that before the jury may be permitted to infer that he stole the plugs found in his possession (Exhibit B) it must first be shown beyond a reasonable doubt that they were recently stolen plugs and that they were the identical plugs charged to have been stolen from Strevell-Paterson. He further urges that this proof must be by direct evidence. He points out that the State's evidence is entirely circumstantial. It is urged that from evidence that there were two lots of plugs missing, that the defendant had access to the docks from which they were missed, that a short time thereafter he was in possession of a similar lot of plugs, etc., the jury was permitted to infer that the missing plugs were stolen. From this inference, plus the evidence showing that it was difficult to get these plugs in lots of 500 and the evidence that the defendant sold the plugs to Sanford at a very low price, etc., the jury was permitted to infer that the plugs found in the defendant's possession were plugs stolen from Strevell-Paterson. From the inference that the plugs in the defendant's possession were plugs stolen from Strevell-Paterson, the jury was permitted to infer in the absence of a reasonable explanation that the defendant stole them. The defendant contends that to permit the jury to draw this series of inferences, violates the rule prohibiting the basing of an inference on an inference.

Under the authorities, it is clear that the State must definitely identify the goods found in the defendant's possession as the goods which were charged to have been stolen before the jury may draw an inference of guilt based upon the proof of possession by the defendant of such goods. Nelson v. State, 29 Ala. App. 121, 192 So. 594; State v. Williams, 102 Ore. 305, 202 P. 428; State v. Matticker, Mo. Sup., 22 S.W.2d 647; Moore v. Commonwealth, 229 Ky. 765, 17 S.W.2d 1021; Carter v. State , 57 Ga.App. 180, 194 S.E. 842.

However, the defendant's contention that the State, if it chooses to rely on the inference of guilt under 103-36-1 must prove the identity of the goods by direct evidence is untenable. See Underhill Criminal Evidence, 4th Ed., Sec. 510. In Carter v. State, supra, the court questioned the soundness of the rule that an inference cannot be based upon another inference and stated:

"Conceding it to be so [that the rule is of doubtful validity], yet it is nevertheless true that where, in a criminal case, a certain fact, such as the recent possession of stolen goods in a prosecution for larceny, is relied on, and is not directly proved, but is to be inferred from [the] circumstances, those circumstances should be such as to exclude every reasonable inference except that the defendant was actually in the possession of the goods alleged in the indictment to have been stolen."

Further, the rule that an inference cannot be based upon an inference has frequently been repudiated. See E. K. Wood Lumber Co. v. Andersen, 9 Cir., 81 F.2d 161; New York Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948; Hinshaw v. State, 147 Ind. 334, 47 N.E. 157, 158; Welsch v. Charles Frusch L. & P. Co., 197 Iowa 1012, 193 N.W. 427; Masonite Co. v. Hill, 170 Miss. 158, 154 So. 295, 95 A. L. R. 157; Hepp v. Quickel A. & S. Co., 37 N.M. 525, 25 P.2d 197; L'Esperance v. Sherburne, 85 N.H. 103, 115, 155 A. 203; State v. Fiore, 85 N.J.L. 311, 88 A. 1039; Gypsy Oil Co. v. Ginn, 152 Okla. 30, 3 P.2d 714; Neely v. Provident Life & Accident Co., 322 Pa. 417, 185 A. 784. See also Wigmore on Evidence, Vol. 1, Sec. 41, where in criticizing the rule it is stated:

"It was once suggested that 'an inference upon an inference' will not be permitted, i.e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several Courts, and sometimes actually enforced. There is no such orthodox rule; nor can be.

"* * * The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon."

The case of State v. Bruno Hauptmann, 115 N.J.L. 412, 180 A. 809, is an apt example of a conviction based upon the drawing of successive inferences leading to the ultimate conclusion of guilt.

Excellent discussions of the rule can be found in Neely v. Provident Life & Accident Ins. Co, supra; and in New York Life Inc. Co. v. McNeely, supra. In the former opinion it is stated [322 Pa. 417, 185 A. 784]:

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