State v. Karas

• Decision Date: 13 November 1913
• Docket Number: 2555
• Citation: 43 Utah 506,136 P. 788
• Court: Utah Supreme Court
• Parties: STATE v. KARAS

136 P. 788

43 Utah 506

STATE v. KARAS

No. 2555

Supreme Court of Utah

November 13, 1913

APPEAL from District Court, Seventh District; Hon. A. H Christensen, Judge.

Gust Karas was convicted of third degree burglary. He appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

S. A King and Claude King for appellant.

A. R Barnes, Attorney- General, and E. V. Higgins, and G. A. Iverson, Assistant Attorneys General for the State.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The defendant was convicted of burglary in the third degree--breaking into a tent in the daytime--and appeals.

The sufficiency of the evidence to show the commission of the offense is conceded. The question presented for review is the sufficiency of the evidence to connect the defendant with it.

Near Schofield, some five tents in a row, numbered from twenty-one to twenty-five, and from ten to one hundred feet apart, were maintained and occupied by miners working in a mine near by. Tent twenty-five was burglarized. It was occupied by two miners, who, as they testified, at about seven o'clock in the morning locked the door and left the tent to go to work. That tent was about one hundred feet from a highway to the west of it. Two tents to the east of tent twenty-five, and about one hundred feet from it, was tent twenty-three. That tent was occupied by the defendant and about fourteen other miners and a cook. The miners of that tent also left about seven o'clock, leaving the defendant and the cook alone in the tent. The defendant, on account of an injury, had not worked for several days, and for that reason remained at home about his tent on the day in question. At about eight or eight-thirty o'clock the cook left the tent to go to Schofield, leaving the defendant alone. Between seven o'clock and nine o'clock in the morning some one entered tent twenty-five by cutting a hole through the lumber part of the tent, disarranged the furniture, and took $ 1.25 in money and a watch chain belonging to the occupants of that tent.

A witness for the state, a grocer, testified that that morning at about nine o'clock he went to the front door of tent twenty-five to deliver a can of coal oil. He unlocked the door with a key the occupants had put to one side, and then tried to push the door open. Some one on the inside held it, and said: "Hello." The witness said: "Hello, there. I have some stuff to deliver here." The person on the inside: "Get out Go on and tend to your business." The witness: "I have some stuff to deliver here." The person on the inside: "Get out Do you want to get in my house?" The witness left without opening the door, or seeing the person on the inside, and went up the street a hundred yards or more, and there talked a little while with some one living in a house near by, and then returned to tent twenty-five. On his way back he saw the defendant at the rear of the tents, bareheaded, and without a coat or vest. He testified that he did not see the defendant come out of tent twenty-five, and while talking with such other he could not see it, and did not watch it, nor did he know or notice if persons were in or about tents twenty-four, twenty-two, or twenty-one. Just where the defendant was when he saw him is not definite. On direct examination, in response to questions asked him, the witness testified: "I saw him come from the behind. Q. Where did he come from? A. There was two tents together, and he came from the south, you know. (Tent 25 was west of tent 23.) Q. He came from where? A. South from the tent where I was to deliver the stuff." On cross-examination he said: "I saw the defendant between tents twenty-two and twenty-three, or twenty-three and twenty-four. Q. You wouldn't say it was not between twenty-two and twenty-three? A. No, sir." When the witness returned to tent twenty-five he opened the door, left the oil, and then locked the door and put the key where he had found it. He then noticed the hole in the tent. Then the witness, after he had merely testified that he knew the defendant, and that he thought he lived in tent twenty-two (instead of twenty-three), and without any showing as to how long or well he had known him, or under what circumstances, or ever had previously talked with him, or heard him talk, was asked by the state: "Q. Do you know whose voice it was (inside the tent when he was first there)? A. Yes, sir. Q. Could you tell, can you tell whose voice it was? A. By myself I can tell. Q. What is it? A. I did not see in who it is; by the voice I can tell. Q. Whose voice was it? A. Gust Karas' voice (the defendant)." On cross-examination, after testifying that he was an Italian, that the defendant was an Italian, and that what he heard was spoken in English, he was asked and he answered: "Q. You did not see Gust Karas in the tent, did you? A. No, sir. Q. And you heard a voice you thought was Gust Karas'? A. Yes, sir. Q. As matter of fact you do not actually know it was Gust Karas? A. By myself I am sure. Q. I am not asking you about that, by yourself. You thought that you recognized his voice? A. Yes, sir. Q. But as matter of fact you do not know it was actually his voice, do you? A. I was certain myself. Q. Well, you could have been mistaken about that? A. Well, I might have been mistaken; I wouldn't swear it; I did not see him, but his voice told me it was him. Q. You thought it was his voice? A. Yes, sir. Q. You know there are lots of people whose voice sound alike? A. I believe that. Q. This voice that you heard you thought was his voice, and that was all there was to it? A. Yes, what I thought. Q. But as matter of absolute fact you don't know whether it was him or not, do you? A. No, sir. Q. You wouldn't swear now, as a matter of fact, that it actually was him? A. No, I just swear by myself. Q. That you thought it was his voice? A. Yes, sir. Q. That is all? A. I didn't see the fellow; but myself I think it was the fellow." This is all the evidence tending to connect the defendant with the commission of the offense.

The defendant testified that he had lived at tent twenty-three for about seventeen months; that he had known the grocer for about a year from seeing him deliver merchandise at the tents, but he had never talked with him; that several days before the time in question he was hurt in the mine and laid off, staying about his tent; that he was not in tent twenty-five and denied he committed the offense; that he was at or near the rear of his tent on the occasion testified to by the grocer, but was then returning from a closet in the rear and to the south of the tents, and from gathering sticks for a fire, and that he then saw the grocer pass along in front. He further testified he could not talk English. The record shows his testimony was given through an interpreter.

At the conclusion of the state's case, and at the conclusion of all the evidence, the defendant asked, that a verdict be directed in his favor on the ground that the evidence was not sufficient to connect him with the offense. The motions were denied and the case submitted to the jury, who found the defendant guilty.

The state, to support the verdict, points to but one thing--the testimony of the grocer (1) that he recognized the defendant's voice in the tent, and (2) shortly thereafter saw him in the rear, not of tent twenty-five, but between tents twenty-two and twenty-three, or twenty-three and twenty-four, coming from the south; tent twenty-five being to the west. The second may readily be dismissed. Had the defendant not resided there, had he been a stranger, and not there in pursuit of some proper calling or business, his unexplained presence about the tents or in the vicinity where the offense was committed shortly before or after its commission might be significant, and give rise to the inference of more or less weight that it was he who committed the offense. But, residing as he did at tent twenty-three for more than a year, his presence at eight or nine o'clock in the morning at the rear of his tent, or between his own tent and tent twenty-four or twenty-three, coming from the south, the direction of the closets, "just walking along regularly," as testified to by the grocer, without a hat, coat, or vest, does not raise any such inference. His presence under such circumstances is just as consistent with innocence as with guilt.

Now as to identity by the voice, the one thing upon which the state chiefly relies. Undoubtedly voice is a competent means of identification, and one by such means alone may be sufficiently identified. In some instances...