State v. Kenworthy

• Decision Date: 14 May 1948
• Docket Number: 7408
• Citation: 68 Idaho 312,193 P.2d 838
• Parties: STATE v. KENWORTHY et al
• Court: Idaho Supreme Court

193 P.2d 838

68 Idaho 312

STATE v. KENWORTHY et al

No. 7408

Supreme Court of Idaho

May 14, 1948

Appeal from District Court, Fifth District, Franklin, County; L. E Glennon, Judge.

Affirmed.

C. V Boyatt, of Pocatello, and Arthur E. Johnson, of Montpelier, for appellants.

In a prosecution for larceny, it is necessary to allege that the owner of the property, if not a natural person, is a corporation or otherwise a legal entity capable of owning property. Annotation and cases cited and discussed in 88 A.L.R. 485.

A defendant is not required to prove his innocence, and an instruction to that effect is not cured by an instruction or instructions which state the rule correctly. State v. Calkins, 63 Idaho 314, 120 P.2d 253. The burden of proving the defendant's guilt beyond a reasonable doubt is always upon the State; and the burden is always upon the State to rebut any exculpatory evidence contained in its own case, and in such case, the burden does not ever shift to the defendant. Section 19-2004 I.C.A. State v. Copenbarger, 52 Idaho 441, 16 P.2d 383, 385; State v. Calkins, supra.

The recent unexplained possession of stolen property is a circumstance from which the guilt of the accused may be inferred, but there must be sufficient evidence to bring this rule into play. State v. Bates, 63 Idaho 119, 117 P.2d 281.

Robert E. Smylie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.

Ownership of stolen property need not be alleged with precision. In a case where the alleged crime caused an injury to another, even an erroneous statement of the party injured is immaterial. I.C.A., Sec. 19-1315; State v. Farris, 5 Idaho 666, 51 P. 772; State v. St. Clair, 6 Idaho 109, 53 P. 1; State v. Rathbone, 8 Idaho 161, 67 P. 186; State v. Ireland, 9 Idaho 686, 75 P. 257.

Contradictory statements made by an accused concerning the pertinent facts are evidence even of the corpus delicti itself. State v. Allen, 53 Idaho 737, 27 P.2d 482.

Possession of recently stolen property is sufficient to support a conviction, unless a satisfactory explanation be offered by the accused. Such an explanation must be reasonable. State v. Gilbert, 65 Idaho 210, 142 P.2d 584; State v. Davis, 57 Idaho 413, 65 P.2d 1385; State v. Jackett, 45 Idaho 720, 264 P. 875; State v. Sanford, 8 Idaho 187, 67 P. 492.

Budge, Justice. Givens, C. J., concurs. Hyatt, J., concurs in the result. Holden, Justice, dissenting. Miller, J., concurs in this dissenting opinion. Miller, Justice, dissenting. Holden, J., concurs.

OPINION

Budge, Justice.

Appellant, Dean William Kenworthy, was convicted of the crime of grand larceny. This appeal is from the judgment and order denying appellant's motion for new trial.

The action of the court in denying the motion for new trial is not assigned as error, neither is it discussed in appellant's brief, nor was it argued at the hearing, therefore is not here for determination.

We will proceed to discuss the errors relied on for reversal of the judgment in the order in which they are stated in appellant's brief.

The first error assigned attacks the sufficiency of the information upon two grounds:

"a. Said information fails to allege ownership of the property alleged to have been stolen in any person or in any legal entity capable of owning property.

"b. Said information fails to particularly describe the property alleged to have been stolen, so as to state the facts constituting the offense in ordinary and concise language, or to allege the particular circumstances of the offense charged."

The charging part of the information alleges:

"The said Dean William Kenworthy * * * on the 6th day of May, A.D. nineteen hundred and forty-seven at the County of Franklin, in the State of Idaho, did then and there steal, take and carry away from the Palmer Implement Company store in Preston, Idaho, certain saddles and blankets, headstalls, gloves, riding boots, a twenty-two rifle, and a Remington typewriter, the property of the said Palmer Implement Company, and of the value of about Fifteen hundred Dollars. Contrary to the form, force, and effect of the statute in such cases made and provided, * * *"

The point appellant seeks to make is, that the information is defective and void in that the charging part thereof does not allege that the Palmer Implement Company is a corporation or a partnership, or an entity capable of owning property; that in the instant case the Palmer Implement Company may be a partnership, subjecting appellant to further indictments and prosecutions by any one of the partners in the ownership of the property lost, and that this is particularly true by reason of lack of description of the property alleged to have been stolen, and the lack of proof of ownership.

Under the provisions of sec. 19-1315, I.C.A., ownership of stolen property need not be alleged with precision where the alleged crime caused an injury to another. Said statute reads as follows:

" Erroneous designation of person injured. -- When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material."

In State v. Farris, 5 Idaho 666, 51 P. 772, this court held:

"Where the information alleges one C. to be the owner of the stolen property, and the proofs show that he was in possession of the property as the agent of the real owner, with full power to sell or otherwise dispose of the same, held sufficient to uphold the allegation in the information." See, also, State v. St. Clair, 6 Idaho 109, 53 P. 1.

In State v. Rathbone, 8 Idaho 161, 67 P. 186, the title to the stolen property was alleged in the information to be in George M. Brown, and the proof showed it was the property of George M. Brown and R. L. Brown. It was held that the variance between the allegation and proof was not fatal.

In State v. Ireland, 9 Idaho 686, 75 P. 257, 258, we find the following language:

"Could it possibly prejudice any substantial right of the defendant whether the stolen animal belonged to Bybee alone, or to Bybee & Jones as partners? We think not. Bybee certainly had an interest in it, if he was only half owner thereof.

"In the Texas case above cited [Henry v. State, 45 Tex. 84] the defendant was indicted for the theft of 'two certain oxen, of the value of $ 20 each, and both of the value of $ 40, the property of Mrs. Mary Cobb.' Upon the trial it was shown that the oxen belonged to Mrs. Mary Cobb and others. It was held that the variance between the proof and the averment in the indictment was not fatal."

Further quoting from the above case:

"Section 8236, Rev.St.1887 [sec. 19-3602, I.C.A.], provides as follows: '* * * Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.'"

It is sufficient to allege ownership in T & C without stating whether it constituted a partnership or corporation. People v. Goggins, 80 Cal. 229, 22 P. 206. Likewise, it is sufficient to allege the property to be that of certain persons doing business under the firm name of H. E. & Co., without giving their names. People v. Ah Sing, 19 Cal. 598; People v. Henry, 77 Cal. 445, 19 P. 830.

In People v. Nash, 1 Idaho 206, it is held:

" An objection to an indictment that it sets forth no sufficient charge of a criminal offense, should not be allowed to prevail in a doubtful case, but only when the insufficiency is so palpable as clearly to satisfy the mind of the judge that a verdict thereon would not authorize a judgment. It is not necessary for the prosecution to exclude every possible defense in order to secure a conviction."

The cases heretofore cited are substantially supported by State v. Gee, 48 Idaho 688, 284 P. 845; State v. McDermott, 52 Idaho 602, 17 P.2d 343; Evershaw v. Moran, 57 Nev. 417, 65 P.2d 877; James v. State, 53 Ariz. 42, 84 P.2d 1081; Edson v. State, 77 Okl.Cr. 100, 139 P.2d 198; People v. Johns, 69 Cal.App.2d 737, 160 P.2d 102, 106.

We have concluded that the ownership of the property is sufficiently charged in the information. The proof upon the trial established the fact that there was only one Palmer Implement Company in Preston; that said company was a corporation; that Leo Palmer was a stockholder and manager of said corporation, in possession of its property with power to sell and dispose of the same, therefore, appellant was not prejudiced in the respect complained of. There is no merit in the contention that the description of the property set out in the information was not sufficient to inform appellant of the nature and character of the charge against him.

The omission of the word "felonious" from the information charging grand larceny is not a fatal defect rendering it insufficient to charge the crime where the information alleges that defendant did steal, take, and carry away the property of another. State v. Basinger, 46 Idaho 775, and cases cited on pages 778-780, 271 P. 325.

Appellant's second assignment is:

"That the court misdirected the jury in matters of law, and erred in deciding questions of law arising during the course of the trial as follows:

"a. The court erred in giving Instruction No 6.

"b. The court erred in refusing to give defendant's requested instructions Nos. 1, 2, 3 and 4.

"c. The court erred in overruling defendant's motion to dismiss the information at the conclusion of the State's case.

"d. The court erred in overruling defendant's motion to dismiss the case at the...