State v. Ivey

• Decision Date: 22 June 1923
• Docket Number: No. 34998.,34998.
• Citation: State v. Ivey, 194 N. W. 262, 196 Iowa 270 (Iowa 1923)
• Parties: STATE v. IVEY.
• Court: Iowa Supreme Court

196 Iowa 270

194 N.W. 262

STATE

v.IVEY.

No. 34998.

Supreme Court of Iowa.

June 22, 1923.

Appeal from District Court, Chickasaw County; W. J. Springer, Judge.

The defendant was indicted and tried for the larceny of a Ford touring car, and convicted.Reversed.

Superseding opinion192 N. W. 312.J. E. Williams, of Mason City, and M. F. Condon, of New Hampton, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and John H. Howard, Co. Atty., and M. E. Geiser, both of New Hampton, for the State.

FAVILLE, J.

One Justen is a farmer living near the town of Fredericksburg, in Chickasaw county.He was the owner of a Ford touring car.On the evening of July 29, 1921, he drove the touring car to the town of Fredericksburg and left the same standing on one of the streets.About midnight, when he went to look for said car, he found it had been stolen.He did not discover the car until the following November, when he found it in the possession of one Gerkey at Eldora, in Hardin county.The engine numbers on the car had been changed.Gerkey had purchased the car in the month of August at Eldora, from one Alberry.It was the contention of the state that Alberry purchased the car on July 30, 1921, from the appellant, who was accompanied at that time by another party whom he introduced to Alberry as R. L. Davis.At that time the registration certificate showed that the car had been registered in the name of R. L. Davis, at Spencer, Clay county, on July 19, 1921.There was evidence that the appellant obtained this registration certificate at Spencer on July 19, 1921, and signed and swore to the necessary affidavit, giving his name as R. L. Davis, his residence as Spencer, and stating that the car he desired to have registered had been purchased by him in Minnesota and bore a Minnesota number.The appellant, as a witness in his own behalf, denied having been in Spencer upon the day indicated, or that he had signed the affidavit referred to.He likewise denied having sold the car to Alberry, but admitted being in Eldora at that time and claims he saw the car sold to Alberry by a man named R. L. Davis, but denies having had any part in the transaction.He denied he had gone under the name of Larson in Algona in August of 1921, and the state in rebuttal offered the evidence of a witness who testified that he made application for an automobile license at Algona in August, 1921, and gave the name of Larson at said time.

[1] I. It is contended by the appellant that the court erred in failing to instruct the jury that the state's case rested wholly upon circumstantial evidence.

The court fully and correctly instructed the jury in regard to the law pertaining to circumstantial evidence.It was not reversible error for the court to fail to tell the jury that the state's case rested entirely upon circumstantial evidence.There was no claim by the state that there was any direct evidence of the appellant's guilt.The case was tried on the theory that a conviction must rest, if at all, wholly on circumstantial evidence, and the court instructed fully on that subject-matter.The appellant is in no position to complain under such a situation, because the court failed to tell the jury that the state's case rested wholly on circumstantial evidence.SeeState v. Grba, 194 N. W. 250, decided at the current term.The instructions in the case must all be read together, and, when they are so read, there was no error therein on the subject of circumstantial evidence of which the appellant can complain.

II.The court gave the jury the following instruction:

“If you find, from the evidence, beyond a reasonable doubt, that the car in question was stolen in Chickasaw county, Iowa, and you further find that at Eldora, Iowa, when said car was being sold, and the money was paid therefor, that at said time the defendant was in possession of said automobile, then the presumption arises that said automobile was stolen by the defendant; but this presumption may be overcome by the defendant showing that he came into the possession thereof honestly and in good faith.”

Two matters in this instruction are subject to criticism.One is the use of the expression that a “ presumption arises that the automobile was stolen by the defendant” because of possession; the other is the statement that “this presumption may be overcome by the defendant showing that he came into the possession thereof honestly and in good faith.”

[2] It is not correct to say that the unexplained possession of recently stolen property “is sufficient to raise a presumption of defendant's guilt.”What the court doubtless meant was that a “permissible inference” may arise from the possession of recently stolen property that the one in such possession is guilty of the larceny.

At no stage of the proceedings does the law raise a “presumption” of the guilt of a person charged with crime, nor does it ever cast upon him the burden of satisfying the jury of his innocence.A “permissible inference” of guilt may be drawn from certain established facts, such as the unexplained possession of recently stolen property; but no “presumption” of guilt arises therefrom.At all times, and throughout the case, the burden rests upon the state to establish the guilt of the defendant beyond a reasonable doubt.It may be true that in some of our earlier decisions we have tolerated the use of the word “presumption” in instructions on this subject where it appeared from all of the instructions in the case that the jury would understand that the word “presumption” was used in the sense of “permissible inference” and where the proper burden was placed upon the state throughout to establish the guilt of the defendant beyond a reasonable doubt.But in our later caseswe have expressly disapproved of such an instruction.

In State v. Kimes, 145 Iowa, 346, 124 N. W. 164, in criticizing an instruction in this form, we said,

“The law never presumes the guilt of any person charged with crime and never casts upon him the burden of satisfying the jury of his innocence.It authorizes the jury to find the fact of guilt from a given state of circumstances, but it does not command such a finding.”

We also discussed the matter in State v. Bricker, 178 Iowa, 297, 159 N. W. 873.

We cannot approve of an instruction in this form.

[3][4] In said instruction the court also used this language:

“But this presumption may be overcome by the defendant showing that he came into the possession...