State v. Marcoe

• Decision Date: 16 November 1920
• Parties: STATE, Respondent, v. E. E. MARCOE, Appellant
• Court: Idaho Supreme Court

193 P. 80

33 Idaho 284

STATE, Respondent, v. E. E. MARCOE, Appellant

Supreme Court of Idaho

November 16, 1920

CRIMINAL LAW-CIRCUMSTANTIAL EVIDENCE.

In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

From a conviction of unlawful transportation of intoxicating liquor defendant appeals. Reversed.

Judgment reversed and a new trial ordered.

R. J Dygert, for Appellant.

Where the evidence is not sufficient to justify a verdict of guilty, the supreme court will reverse the judgment of the lower court and set aside the verdict. (State v Sayer, 23 Idaho 536, 130 P. 458.)

T. A. Walters, Former Atty. General, R. L. Black, Attorney General, and James L. Boone, Asst. Atty. General, for Respondent, cite no authorities.

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

The appellant was convicted of the crime of transporting intoxicating liquors in Bannock county, Idaho. The only question raised by this appeal is the sufficiency of the evidence to sustain the judgment.

Dorsey Nichols, a deputy sheriff residing at Soda Springs, testified that on the evening of the 8th of January, 1918, he went to the depot at Soda Springs and found a box in the baggage-room which contained whisky. He says: "I thought it was Marcoe's." He immediately got in touch with Marcoe, and the following is his story of the conversation: "I asked him if the box in the depot was his. He says it wasn't; that he didn't know anything about it. I told him that was all then." The evidence does not show how the box came to be at the depot, only that it bore a baggage check which showed that it came from Lima, Montana. The box had the appearance of a tool-chest. The appellant was a plumber, working at his trade in a hotel building at Soda Springs. Several months prior to this time he had been engaged in similar work at Lima, Montana. The evidence shows that he had received several shipments of plumber's supplies, and usually received a shipment about once a week. On the following day the box was opened and found to contain a partition or tray constructed of lumber which had been taken from crating or supplies shipped to appellant. Upon one of the pieces of this crating was printed "E. E. Marcoe, Soda Springs." It was shown that boards so marked were thrown about indiscriminately at Soda Springs, and obtainable by anyone. On the morning of January 8th, according to the testimony of the station agent, Marcoe called at the depot and told him he was expecting a box and that as soon as it arrived he wished to be notified. On the 9th the appellant again called on the station agent and asked him if it were true that a box of liquor had been found in the depot. Upon being told that that was true, the appellant said, "If they didn't catch anybody nothing would happen." There was no evidence that appellant ever had possession of the box containing the intoxicating liquor.

The foregoing is all the testimony which had any...