State v. Hall

• Decision Date: 18 June 1943
• Docket Number: 6588
• Citation: 139 P.2d 228,105 Utah 151
• Court: Utah Supreme Court
• Parties: STATE v. HALL

139 P.2d 228

105 Utah 151

STATE v. HALL

No. 6588

Supreme Court of Utah

June 18, 1943

For opinion on rehearing see 105 Utah 162, 145 P. 2d, 494.

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

Ray Nuttal Hall was convicted of grand larceny, and he appeals.

Reversed and remanded for a new trial.

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

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

WOLFE Chief Justice. LARSON, McDONOUGH, and WADE, JJ., MOFFAT, Justice, concurring.

OPINION

WOLFE, Chief Justice.

The defendant, Ray Nuttal Hall, was convicted of the crime of grand larceny. On this 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 (500) 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 charge 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 of 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. It is this latter missing case of plugs which the State charges that the defendant stole and upon which it bases this prosecution.

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. The fact that on May 22nd the three cases of plugs were unloaded together on the docks and that only one was missing, together with the fact that the missing case could not be found after a search, also supports the theory that the missing case was 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 delicti 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 enough plugs for over a year to sell case lots of these plugs to the various dealers. Yet within two days after this last shipment disappeared 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 shipments 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 both stolen. However, connecting the defendant with the May 23rd theft presents a different problem.

To connect the defendant with this theft the State relied primarily on the presumption of guilt which by virtue of section 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 (1) that before the jury should be permitted to draw such an inference of guilt, the State must prove beyond a reasonable doubt that the plugs which Sanford allegedly purchased from the defendant were the identical plugs stolen on May 23rd; and (2) that proof of such identity must be made by direct evidence, for, he argues, to permit an inference of guilt to be drawn from facts established by circumstantial evidence would violate the rule which prohibits the basing of an inference on another 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 section 103-36-1, must prove the identity of the goods by direct evidence is untenable. See Underhill, Criminal Evidence, 4th Ed., § 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 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 Corp. 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, § 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 impractical 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 Neeley v. Provident Life & Accident Ins. Co., supra; and in New York Life Ins. Co. v. McNeeley, supra. In the former opinion it is stated [322 Pa. 417, 185 A. 784]:

"When jurors in their deliberations arrive by a process of reasoning at an acceptable inference of fact, they have a right to add such fact to any previous facts found by them and proceed by ratiocination from such fact or facts to additional inferences of fact and then proceed still further by like process until they arrive at the ultimate conclusion on the issue trying."

In the New York Life Ins. Co. v. McNeeley case [52 Ariz. 181, 79 P.2d 948] the court stated:

"But when an inference of the probability of the ultimate fact must be drawn from facts whose...