State v. Harras

• Decision Date: 01 July 1901
• Citation: 65 P. 774,25 Wash. 416
• Parties: STATE v. HARRAS.
• Court: Washington Supreme Court

65 P. 774

25 Wash. 416

STATE v. HARRAS.

Supreme Court of Washington

July 1, 1901

Appeal from superior court, Walla Walla county; Thomas H. Brents Judge.

Reinhold Harras was convicted of theft, and he appeals. Affirmed.

H. S. Blandford, Geo. T. Thompson, and Wm. H Upton, for appellant.

Oscar Cain, for the State.

MOUNT J.

Appellant charged with the crime of cattle stealing, was convicted in the superior court of Walla Walla county on April 20, 1900 and was sentenced to a term in the penitentiary. Appeal was taken to this court, alleging numerous errors of the trial court in its instructions to the jury. The first error complained of is that the court refused, on request, to give an instruction relative to the possession of recently stolen property. The evidence in the case is not before us, but it seems to be conceded that one J. E. Kirkland was the owner of the stolen cattle, and that the defendant upon the trial denied the taking, and claimed to have purchased the cattle in question from one Macey. At the proper time defendant's counsel requested the court to 'instruct the jury upon the following subjects: * * * The presumption, if any, arising from the possession of stolen property.' No instruction was given defining any presumption arising from possession of stolen property. This court, in State v. Walters, 7 Wash. 246, 34 P. 938, 1098, lays down the rule as follows: 'The possession of recently stolen property may or may not be a criminating circumstance, and whether it is or not depends upon the facts and circumstances connected with such possession. It is a circumstance to be considered by the jury, in connection with all the other evidence in the given case, in determining the guilt or innocence of the accused; and its weight as evidence, like that of any other fact, is to be determined by them alone. * * * Any presumption that may be drawn from such possession is a presumption of fact merely; in other words, it is only an inference that one fact may exist from the proof of another, and does not amount to a rule of law.' This being true, it was not error for the court to refuse to single out any particular circumstance, and instruct the jury what presumption they should give it. The court did instruct the jury generally upon circumstantial evidence, and such instruction, properly directing the jury as to the manner in which they were to look upon and consider this character of evidence, is all that the law requires. 12 Enc. Pl. & Prac. 1013; Bonners v. State (Tex. Cr. App.) 35 S.W. 650.

The next error complained of is in the giving of the following instruction (No. 8): 'The state is not required, however to prove these facts by direct and positive evidence. It may do so by circumstantial evidence. Circumstantial evidence is legal and competent evidence in criminal cases, and where it is all consistent with the hypothesis of the guilt of the person accused of crime, and is not consistent with the hypothesis of his innocence, and where it establishes his guilt beyond a reasonable doubt,--where all the evidence can be reconciled with the assumption of his guilt, and cannot be reconciled with the assumption of his innocence, and produces in the minds of the jury an abiding conviction to a moral certainty of his guilt,--it is the imperative duty of the jury, under the law and under their several oaths, to render a verdict finding him guilty, and they would violate their oaths if they should fail to do so, just as they would if it were all direct and positive evidence. Nor is it necessary that they should be absolutely certain of his guilt. This is impossible, in the nature of things, and the law does not require it. If it did, few crimes, perhaps, would be punished. Moral certainty of guilt, therefore, satisfies the law in this respect. But, before rendering a verdict of guilty in any criminal case, a jury should, after a consideration of all the evidence, feel morally certain--have an abiding conviction to a moral certainty--of the guilt of the accused. And if in this case, gentlemen, the evidence, though in part circumstantial, all considered, appears to your minds to be consistent with the supposition that the defendant is guilty of this charge, and inconsistent with the supposition that he is innocent of it, and you feel morally certain, though not absolutely certain, that he is guilty of it,--if you have a firm conviction abiding in your mind that he is guilty of this charge,--you will fail in your duty and violate your oath if you do not return a verdict declaring him guilty as charged. But if, on the other hand, the whole evidence in the case, as you view it, is just as consistent with the assumption of his innocence as with the assumption of his guilt, or if you do not feel morally certain of his guilt,--if you have a substantial, a sensible, a reasonable doubt, resting upon the unsatisfactory character of the evidence to establish his guilt,--your duty is just as imperative to acquit him.' Defendant takes exception to the use of the words 'supposition' and 'assumption,' as used in the foregoing instruction. These words, used as they were in the instruction, are...