State v. Haynes

• Decision Date: 05 May 1945
• Docket Number: 7185
• Citation: 158 P.2d 742,66 Idaho 291
• Parties: STATE OF IDAHO, Respondent, v. RICHARD HAYNES, Appellant
• Court: Idaho Supreme Court

158 P.2d 742

66 Idaho 291

STATE OF IDAHO, Respondent, v. RICHARD HAYNES, Appellant

No. 7185

Supreme Court of Idaho

May 5, 1945

1. Criminal law

That accused is a persistent violator of the law and has served prison terms for previous offenses may not be taken as evidence of his guilt of a subsequent offense.

2. Burglary

Conflicting evidence was insufficient to sustain conviction of burglary in the second degree.

Appeal from the District Court of the Seventh Judicial District, for Canyon County. Hon. Charles F. Koelsch, Judge Presiding.

Reversed and cause remanded with direction to dismiss action.

Earl E Garrity for appellant.

That it does not appear from the evidence that larceny or any other crime was committed.

"Before there can be a lawful conviction for a crime, the corpus delicti -- that is that the crime charged has been committed by someone -- must be proved." (State v Sullivan, 34 Ida. 68, 199 P. 649; State v Williams, 52 N.C. 446, 78 Am. Dec. 248; People v. Jones, 31 Cal. 365; State v. Darrah, 92 P.2d 143.)

"Proof of the charge in criminal causes involves a proof of two distinct propositions: first, that the act itself was done, and, secondly, that it was done by the persons charged and no others; in other words, proof of the corpus delicti and of the identity of the persons." (28 L.R.A. (N.S.) 536; State v. Sullivan, supra.)

Evidence which creates nothing more than a suspicion of guilt, although it be a strong suspicion, is not sufficient to sustain a conviction. (State v. Rankin, 56 Ida. 64; State v. Hurst, 36 Ida. 156, 209 P. 724; State v. Platts, 31 Ida. 19, 168 P. 1143.)

It should be proven that the property alleged to have been stolen was taken at the time of the entry by the defendant and none other, viz., that the entry and taking were a part of the same transaction. (State v. Sullivan, supra; State v. Rankin, supra; 9 Am. Jur. 272, s. 64, n. 19; State v. Brady, 97 N.W. 62.)

Frank Langley, Attorney General, and J. R. Smead, Assistant Attorney General, for respondent.

Immediate flight after the entry and upon discovery of the intruder is in itself sufficient upon which to found a verdict of guilty. (Hill v. Commonwealth (Ky.), 15 S.W. 870; Steadman v. State (Ga.), 8 S.E. 420.)

As is the fact of the unlawful entry by a stranger without permission and having no legitimate business or reason to account for such entry. The facts in the instant case give rise to a presumption of intent to steal. (State v. Woodruff (Ia.), 225 N.W. 254, and many authorities there cited; Cody v. United States, 293 F. 829, and cited authorities; Love v. State (Tex.), 199 S.W. 623.)

Possession of property which disappeared from the house at the time of the entry is evidence of the unlawful intent of the entry. (State v. Brassfield, 40 Ida. 203, 213; State v. Bogris, 26 Ida. 587, 601; State v. Vanek, 59 Ida. 514, 525; State v. Sparks (Mont.), 105 P. 87, 88-89; Maples v. State (Okla.), 58 P.2d 963, 965.)

Ailshie, C.J. Holden, J., and Glennon, D. J., concur. Givens, J. Budge, J., dissents.

OPINION

Ailshie, C.J.

This is an appeal from a judgment of conviction for the crime of burglary in the second degree and persistent violator of law; the charge being, that defendant (appellant herein) "did then and there . . . enter in the daytime that certain dwelling house . . . in Caldwell . . . the same being the residence of L. A. McBride, with the intent then and there to commit larceny therein". The property supposedly stolen was a "bill fold, with enclosures". Appellant was sentenced to imprisonment in the state penitentiary for a term of not less than five years nor more than twelve years. On a former trial in this case, on the same charge, he was sentenced to imprisonment for a term of seven years; on appeal the judgment was reversed and the cause remanded for a new trial. (State v. Haynes, 64 Ida. 627, 135 P.2d 300.) On the first appeal, the trial was held before Judge Buckner, Judge of the Seventh Judicial District; however, on the trial in the second appeal, he deemed himself disqualified and it was ordered that Judge Koelsch, of the Third Judicial District, preside. Motion for new trial was denied by the court. From the judgment of conviction and the order denying motion for new trial, defendant appeals.

The testimony introduced on the two trials and the witnesses called are practically the same. However, on the second trial, four additional witnesses (including defendant) were introduced and testified.

Appellant's (defendant's) testimony, briefly stated, is as follows: That his true name was Enzley C. Loveland; while on the coast, he took out a boxing license under the name of Richard Haynes and boxed under that name for several years; that he held criminal records from three penitentiaries, two in California, for two charges growing out of the same transaction, burglary and forgery; about June 28, 1939, in Boise, he was arrested for attempted burglarization of a hospital there. He served a sentence in the Idaho State Penitentiary from July 1, '39, to February 6, '41, and was given one year conditional pardon, at which time he went back to Missouri and worked in electrical construction work, then worked in Wyoming, back to Nampa and, in August, '41, to McCall, during which month he returned to the penitentiary and finished the "parole inside instead of outside." He drank heavily. As to the present charge against him, appellant denied being in the McBride house and testified that he bought the pocketbook some time in the last part of July or the first of August, 1941, of a man named Johnson, in Randy's Club, Nampa.

Appellant's sister, Mrs. Lovilla Wood, testified that appellant helped her, March 28, 1942, (the day of the alleged burglary), "clean up around the garden and throughout the house . . . He worked for me all day." She recalled this particular day as it was the same date she paid off the contractor who did some remodelling work in her house and she had a cancelled check to show the same. Plaintiff's objection to the check was sustained, but later the court stated: "I believe I will let this check go in, Mr. Garrity. The check itself, of course, is worthless." The check was thereupon admitted and marked as Defendant's Exhibit No. 1.

Testimony of the other two witnesses, introduced on the second trial, is as follows: Mr. George Zeal, employed by the Nampa Police department, testified as to the finger print record in the case. Mr. W. R. Thompson, a guard at the penitentiary, testified as to the commitment papers sent up with appellant.

Mr. A. E. Sutton, (who also testified at the first trial) operated a drug store in Caldwell and had handled leather goods for "some forty years"; the leather goods were usually marked by him personally. As to the purchase of the billfold, that the state contends appellant purloined or stole from the McBride residence, Mr. Sutton's testimony discloses:

"A. I sold Mrs. McBride a billfold bearing the Masonic emblem of that type. Whether that would be the one would be hard to say.

"Q. You don't know. You did know that it was double stamped when you sold it, didn't you? A. No, sir. If I had, I would have returned it to the manufacturers . . .

"Q. You didn't know this was double stamped? A. No. That was a revelation to me to see that . . . It was about a double stamp on this purse. I have never seen another one double stamped. The only explanation that you could give for that would be that it had been an error in the manufacture, and he stamped it over before he sent it out. If it had come to us showing definitely a double stamp, we would have returned the merchandise, because a person buying that naturally would have detected that right away and it would have been practically unsalable with the two stamps . . ." (Italics inserted). "This stock and kind of merchandise all dropped out when the zipper came out a few years ago." At the time he sold the billfold to Mrs. McBride he had "very little of that kind".

This testimony of Sutton tends to...