State v. Kinghorn

• Decision Date: 12 July 1939
• Docket Number: 7945.
• Citation: 93 P.2d 964,109 Mont. 22
• Parties: STATE v. KINGHORN.
• Court: Montana Supreme Court

93 P.2d 964

109 Mont. 22

STATE v. KINGHORN.

No. 7945.

Supreme Court of Montana

July 12, 1939

Rehearing Denied Sept. 26, 1939.

Appeal from District Court, Sixteenth District, Carter County Rudolph Nelstead, Judge.

Russell Kinghorn was convicted of burglary, and he appeals.

Affirmed.

ANGSTMAN J., dissenting.

Ray Shelden, of Ekalaka, and Harry Atwater, of Sturgis, S. D for appellant.

Harrison J. Freeborn, Atty. Gen., and Carl N. Thompson, Asst. Atty. Gen., and Gordon O. Berg, of Ekalaka, for the State.

STEWART Justice.

Russell Kinghorn and two others were charged with the commission of burglary of a homestead cabin in Carter county. Kinghorn demanded a separate trial and it was granted. He was convicted and sentenced to two years in the penitentiary, and from that judgment of conviction he has appealed. His co-defendants remain still to be tried.

Assignments of error are specified in twenty-two particulars, which in their aggregate embody the three following questions: (1) Is the evidence sufficient to support the judgment? (2) Did the court err in refusing certain requested instructions? (3) Was Esther Johnson, state's witness, properly impeached?

The record discloses the following circumstantial evidence upon which the conviction must stand or fall, there being no eye witnesses to the crime. The information charged the crime to have been committed on or about April 27, 1937. Defendant had previously operated a hotel in the town of Alzada, approximately 23 1/2 miles from the burglarized cabin, which hotel was destroyed by fire about April 1st, 1937. He spent the next few months around Alzada, his father's ranch across the border in South Dakota, and was engaged a short time at construction work around Fort Peck. After this he purchased the T. C. Lunchcounter at Sturgis, South Dakota.

The prosecuting witness, Mrs. Bruce Miller, visited her cabin in March, 1937, and at that time the cabin was intact and her property undisturbed. In June the same year, at the time of her next trip to the cabin, she discovered the lock on her door had been broken and many of her possessions had been taken. She notified the authorities and submitted a list of the missing articles. In January the following year she accompanied the Carter county officers to Sturgis, South Dakota, and upon the complaint and affidavit of the deputy sheriff a search warrant was obtained granting authority to enter and search a residence occupied by defendant and a lunchroom operated by him. As a result of the search, a large number of the missing articles were found. Chinaware, wall lamp, ice box, dishes, pillows, mirror and numerous other articles were found at the residence, and cooking utensils were found at the lunchroom. In the basement under the lunchroom, where defendant stored his vegetables, a cedar chest and medicine cabinet belonging to Mrs. Miller were found, the former partially concealed by a "tarp", and the latter in a sack. These were removed to the sheriff's office, and before the chest was opened, defendant denied having ever seen it. It was opened in defendant's presence. He denied having a key for the cedar chest at that time, necessitating a forced opening, but at the trial admitted having possession of the key. Many of the articles in the chest were positively identified and claimed by the prosecuting witness. Two shirts were claimed by defendant, and a number of other things were not claimed by anyone present. Among other things in the chest were two account books of defendant--one pertaining to the lunch business at Sturgis, and the other to the hotel business at Alzada. Upon being questioned as to the account books, defendant made a statement to the effect that "he was on the spot, but he was not alone." He refused to make any explanation of his possession of the stolen property until he had consulted an attorney.

The record also shows that some attempt was made by defendant to settle the matter with Mrs. Miller out of court previous to trial. Defendant admitted he attempted to talk to her, but denied he offered her anything other than that she would "be sure to get her property if there was no appearance in court." To the contrary, however, was the testimony of the Carter county sheriff, who testified that while defendant was being held in jail at Sturgis pending extradition, he inquired whether Mrs. Miller was still in town, and said he would like to see her, and that he would pay $200 or $300 to clear the matter up.

On behalf of defendant evidence was introduced to show that he was not in Montana on the date of the burglary charged, and that he innocently came into the possession of the stolen property through two strangers who left the cedar chest and contents as a pledge against two meal tickets issued by an employee of the lunchroom operated by defendant. Defendant testified that he refused to accept the chest, but upon arriving at his residence found that one of his female employees, who resided there also, had accepted it because she wanted the cedar chest. In contradiction of this explanation Mrs. Miller and her husband testified to a conversation had between them and defendant at the ranch of her father, wherein defendant in explanation of the stolen property said, "I bought the stuff for $25 from a man who has left the country." Defendant denied having made this statement.

Is the evidence sufficient to support the judgment of conviction? It is obvious from the synopsis set out that the strongest circumstance pointing toward the guilt of defendant is the undisputed fact that part of the stolen property was found in his possession ten months after it was known that it had been stolen.

The rule with regard to possession of stolen property is stated in 9 American Jurisprudence, section 74 et seq., page 276, as follows:

"Mere proof of possession of property recently stolen during the commission of a burglary does not raise a presumption of guilt as a matter of law. In some jurisdictions it is regarded as presumptive or prima facie evidence of guilt; in others, it is not. Some courts have taken the view that where the property found in the defendant's possession is identified by the prosecuting witness as his goods, and his testimony is not contradicted, there is sufficient evidence to enable the jury to determine whether or not the goods found in the possession of the defendant were in fact the goods stolen from the prosecuting witness, and some courts have regarded such proof as sufficient to sustain a conviction. Other courts take the opposite view.

The strength of the inference or, in other words, the weight which is to be attached to such evidence is strong or weak according to the character of the property, the nature of the possession, its proximity to the time of the theft, the place of its possession, and the secrecy and the exclusiveness of the possession.

'Ordinarily, of course, the mere possession of the stolen property is not the only incriminating fact. The possession of stolen property is frequently accompanied by incriminating circumstances, such as the character of the explanation of the possession, the secrecy of the possession, a denial of the possession, the presence of the accused near the scene of the crime, his flight, etc.; and it is generally held that proof of such possession explained falsely, or not reasonably, or accompanied by other guilty circumstances is sufficient to carry the case to the jury and to support a conviction."

See, also, 12 C.J.S., Burglary, § 50, page 722.

This rule has been consistently applied and followed in this state in larceny and robbery cases, and finds expression in the following language in State v. Russell, 93 Mont. 334, 18 P.2d 611, 613: "It has been held by this court, following the rule recognized everywhere, that mere possession of property recently stolen is not alone sufficient to convict the possessor of the larceny of it, although it is a strong circumstance indicating guilt. When, however, such fact is supplemented by other facts inconsistent with the idea that the possession is honest, such as the giving of a false or improbable explanation of it, or a failure to explain, where a larceny of the property is charged a case is made sufficient to submit to the jury." See, also, Territory v. Doyle, 7 Mont. 245, 14 P. 671; State v. Sullivan, 9 Mont. 174, 22 P. 1088; State v. Wells, 33 Mont. 291, 83 P. 476; State v. Willette, 46 Mont. 326, 127 P. 1013.

In State v. Sparks, 40 Mont. 82, 105 P. 87, 88, 135 Am.St.Rep. 608, 19 Ann.Cas. 1279, the rule was applied to a burglary case and it was there said, after reciting the rule announced above: "So, where the charge is burglary, if property taken from the owner is soon thereafter found in possession of the person charged with the felonious entry, proof of this fact, together with circumstances showing guilty conduct, is presumptive evidence, not only of the larceny, but also that he made use of the means by which the property was acquired." Citing authorities.

Having in mind the fact as recognized in State v. Ebel, 92 Mont. 413, 15 P.2d 233, 237, also a burglary case, that "proof of possession of recently stolen property is less effective in a burglary case than on a charge of larceny, for, even absolute proof of a larceny, without proof of entry with the intent, at the time of entry, to commit larceny, is insufficient to prove burglary [citing State v. Green, 15 Mont. 424, 39 P. 322]," we are of the opinion that in view of the circumstances of this case, and particularly the conduct of defendant on the day of the fruitful search of his premises and subsequent thereto, there was sufficient evidence upon which the jury could base its verdict of guilty.

Counsel for defendant urgently...