State v. Kelly

• Decision Date: 30 April 1881
• Parties: THE STATE v. KELLY et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 608

THE STATE

v.KELLY et al., Appellants.

Supreme Court of Missouri.

April Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

This was an indictment for larceny, against James Kelly and Henry Johnson. The evidence given at the trial tended to prove that a trunk and contents had been stolen during the afternoon from premises used as a saloon and public boarding house, frequented by a great many people; that on the evening of the same day, two police officers arrested the defendants on the levee at a ferry landing, with the trunk in their possession; that upon being questioned by the officers, they at once, and without hesitation, stated that they had been met but a few minutes before upon Levee street by an individual whom they accurately described by size, color of hair, etc., and that he had engaged them to bring the trunk for him down to the ferry landing, and that said person had “treated” them to beer in a certain saloon, which they pointed out, and desired that the officers go there with them to see if said person was still there; that defendants thought the said party intended following after them to the ferry landing, and they, only a few moments prior to the arrest, had put the trunk down, and were awaiting the coming of the pretended owner; that the officers, by going to the said saloon with defendants, learned that a party answering the description defendants had given, had been at the saloon and ““treated” the defendants to beer, and had afterward disappeared.

The court, of its own motion, gave the following instructions: (1) On the one hand, the law presumes in this, as in all other criminal trials, that the defendants are innocent of the crime charged against them, and allows this presumption to continue until overcome by evidence which proves their guilt; and on the other hand, where property has been stolen, and recently thereafter the same property, or any part thereof, is found in the possession of another, such person is presumed to be the thief, and if he fails to account for his possession of such property, in a manner consistent with his innocence, this presumption becomes conclusive against him. (2) You are the sole judges of the credibility of witnesses who have taken the stand and testified before you. With this the court has nothing to do, and if you believe that any witness is unworthy of credit, or that any one of them has willfully sworn falsely to any material fact in the cause, you are at liberty, if you think proper so to do, to disregard the whole or any part of such witness' testimony.

Thomas B. Harvey for appellants.

The court erred in authorizing the arbitrary rejection of testimony by the jury. Proffatt on Jury Trial, § 362; Thompson Charging the Jury, § 38; Evans v. George, 80 Ill. 51; Robertson v. Dodge, 28 Ill. 161; Crawford v. State, 44 Ala. 382; Wilcox v. State, 3 Heisk. (Tenn.) 110. The court, by printing that portion of the instructions which made most strongly against the defendants, (the part italicized in this report,) gave undue emphasis and prominence to that part. Clear, punctuated print in the midst of ordinary writing, undoubtedly arrests and holds the attention. This was error. Thompson Charging the Jury, §§ 55, 72; Reiger v. Davis, 67 N. C. 185; State v. Simmons, 6 Jones L. 21. The instruction says “if he fails to account for his possession of such property in a manner consistent with his innocence,” etc. This language is certainly very uncertain in its meaning. It would, in view of the fact that defendants are permitted to testify, be quite natural for a jury unacquainted with the law, to construe this phraseology to imply that the defendant himself must explain, and that nothing else could do so. Again, the jury would naturally think the phrase “in a manner” referred to the manner or deportment of the defendants when on the witness stand. It is error to give an instruction so liable to misconstruction. 3 Graham & Wat. New Trials, 774; Thompson Charging the Jury, § 68; Proffatt Jury Trial, § 338. There is no presumption of law that the possessor of recently stolen property is the thief thereof. Thompson Charging the Jury, §§ 40, 44; Wharton Crim. Ev., § 758; State v. Wingo, 66 Mo. 183; Chaffee v. U. S., 18 Wall. 516; State v. Foster, 61 Mo. 549; State v. Lane, 64 Mo. 323; 3 Greenleaf Ev., (13 Ed.) § 31; 2 Bishop Crim. Prac., (3 Ed.) §§ 743, 745; Allison v. State, 42 Ind. 354; People v. Rodundo, 44 Cal. 538; Watkins v. State, 2 Tex. App. 73; Stover v. People, 56 N. Y. 315; Howard v. State, 50 Ind. 190; Com. v. Bell, 102 Mass. 163; Gablick v. People, 40 Mich. 292; People v. Chambers, 18 Cal. 383; Ingalls v. State, 48 Wis. 647; s. c., 10 Cent. L. J. 317; State v. Hodge, 50 N. H. 510; Fackler v. Chapman, 20 Mo. 249; State v. Bruin, 34 Mo. 537. In State v. Robbins, 65 Mo. 444, the error in the instruction similar to the one given in this case, was obviated by another instruction. But if the presumption is raised it can be explained and rebutted otherwise than by “defendant's accounting for his possession in a manner,” etc. Proof of good character will rebut. This was given, but under the instruction the jury could not consider it.

D. H. McIntyre, Attorney General, for the State.

There was no error in the instruction as to requiring defendant to account for the possession, since that was the only defense attempted. State v. Bruin, 34 Mo. 537. As character, in a legal sense, is the estimate of an individual by the community and not his real qualities as conceived by the witness, (Whar. Ev., § 58,) it is not plain how a witness defendant can go upon the stand and swear himself a good character. The character entitled to be proved must be such as would make it unlikely that he would commit the offense charged; i. e., to larceny a character for honesty may be proved. It is equally difficult to understand how the mere reiteration by defendant of a statement made by him can be regarded as confirmatory evidence. If the possession of recently stolen goods is not explained by direct evidence or in some satisfactory way, it is taken as conclusive that defendant committed the theft. State v. Gray, 37 Mo. 463; State v. Creson, 38 Mo. 372; Greenleaf Ev., (12 Ed.) § 34; State v. Barker, 64 Mo. 282.

I.

SHERWOOD, C. J.

Nothing is more familiar to the profession than the division of legal presumptions into two classes; conclusive and disputable. The first, as for instance, that no one is ignorant of the law, that a male infant under fourteen years of age is incapable of committing a certain offense; that a female infant under the age of ten years is incapable of consenting to sexual congress; that an infant under the age of seven years is incapable of committing a felony; and that in certain circumstances, the issue of a marriage is conclusively presumed legitimate. 1 Greenleaf Ev., § 28; 3 Greenleaf Ev., §§ 4, 7; 2 Best on Ev., §§ 336, 338. The disputable presumptions exist in infinite variety, and the list, consequently, is far more enlarged than the former class, ex. gr.: That the law presumes every man innocent; that malice is to be presumed from the use of a deadly weapon; from the sale or publication of libelous matter; that guilt is to be presumed from the suppression, destruction or fabrication of evidence. Wills Circ. Ev., 91; 1 Greenleaf Ev., § 37. That a woman, save in cases of treason or murder, is presumed, when with her husband, to act under his coercion, and that a receipt of the last quarter's rent is presumptive evidence of payment of all rent previously accrued, etc., etc. 1 Greenleaf Ev., § 38. The courts, in the daily routine of their duties, are accustomed to instruct juries as to both classes of presumptions; as to whether the triers of the fact shall regard the presumption of such a character as to forbid the fact presumed from being gainsaid or denied, or as to whether those triers shall regard the presumption of a disputable nature, and, therefore, capable of being overcome by countervailing evidence, or if not corroborated or rebutted, of affording by itself sufficient basis for a verdict.

No one, it seems, has ever doubted the propriety of the disputable presumptions already noticed, respecting innocence; malice from the use of a deadly weapon; from libelous sale or publication, or the presumption arising in regard to coercion, or the destruction or suppression of evidence, or that juries should give, and be instructed to give to such presumptions their ancient and customary effect. But in relation to an equally familiar and ancient presumption in reference to the recent possession of stolen goods, a new departure has been taken, and a new doctrine proclaimed. We are now gravely informed that “presumptions of law are conclusive.” The desired deduction from this premise is, that inasmuch as the alleged presumption relative to the guilty possession of goods is not conclusive, but capable of rebuttal, that, therefore, it is not a presumption of law at all, but dwindles into a mere ““inference of fact,” to be weighed by the jury and held in no higher estimate than any other like inference.

All disputable presumptions had their origin in the common observations and experience of mankind that one fact is usually the concomitant of another fact; (1 Greenlea, Ev., § 33;) that the use of a deadly weapon being shown malice is commonly found to be the concomitant, though concealed fact, which prompted such use. But malice does not universally attend the use of a deadly weapon; therefore, the law will not conclusively presume malice from such use, but will, nevertheless, presume that the usual accompanying fact, malice, was incident to that use, until the contrary is made to appear. To say then, in such a case, that malice is not to be presumed, but is only to be deduced by the jury as an “inference of fact,” like any other similar inference, is to substitute for that which the common experience of mankind extending from a remote period down to...