State v. Marquardsen

• Decision Date: 03 December 1900
• Parties: STATE v. MARQUARDSEN
• Court: Idaho Supreme Court

62 P. 1034

7 Idaho 352

STATE v. MARQUARDSEN

Supreme Court of Idaho

December 3, 1900

GRAND LARCENY-INSUFFICIENT EVIDENCE.-Evidence in this case considered, and found insufficient to warrant conviction.

NEW TRIAL-IMPEACHING VERDICT.-A motion for a new trial, based upon affidavits of individual jurors impeaching the verdict of a jury of which said affiants were members, cannot be sustained.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Reversed.

Hawley & Puckett, for Appellant.

The attempt to imply guilt because Branthover saw heads in the open cellar upon a certain occasion will hardly be seriously considered here. This case is parallel in every material respect with the case of State v. Seymour, ante, p. 257, 61 P. 1033. There is absolutely no evidence to sustain the verdict, and it must be presumed to have been rendered under the influence of passion and prejudice and should be set aside. (State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Crump, 5 Idaho; 166, 47 P. 814; State v Mason, 4 Idaho 543, 43 P. 63.) The single circumstance that the defendant is in possession of stolen property within a few days after it left the owner's possession is not sufficient evidence to justify a conviction of larceny. (People v. Swinford, 57 Cal. 86; People v Noregea, 48 Cal. 123; 3 Greenleaf on Evidence, sec. 31; People v. Chambers, 18 Cal. 383.) In a prosecution for grand larceny a party defendant who was not present, and did not participate in the theft, but subsequently with a guilty knowledge that it was stolen, received and aided in the disposition of the stolen property, is not, under the statutes in this state, an accessory after the fact, but is liable as a receiver of stolen goods. (People v Stakem, 40 Cal. 599.) To justify the conviction of a defendant on a criminal charge he must not only be proven to have committed an offense, but the very offense charged in the indictment. (People v. Fagan, 98 Cal. 230, 33 P. 60; People v. Maxwell, 24 Cal. 14; People v. Ribolsi, 89 Cal. 492, 26 P. 1082; People v. Avila, 43 Cal. 196.)

Samuel H. Hays, Attorney General, for the State.

We may review errors of law in admitting evidence, and, in case of error, grant a new trial, but the question of fact, where there is any legal evidence, is for the jury. (State v. Haverley, 4 Idaho 484, 42 P. 506; People v. Vance, 21 Cal. 400.) It is attempted to impeach the verdict of the jury in this case by the affidavits of some members of the jury and the affidavit of a third person, as to what other members of the jury had told him. That the verdict cannot be impeached in the manner here attempted is settled by Griffiths v. Montandon, 4 Idaho 377, 39 P. 548, and State v. Murphy, ante, p. 183, 61 Pac, 462.

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The defendant was convicted of the crime of grand larceny in the alleged stealing of five head of cattle. The only evidence against the defendant is the finding in his possession of the hides of some of the alleged stolen cattle. Against this evidence defendant alleges that he bought said cattle, giving the time and circumstances under which the purchase was made. Earl McCullough, a witness for the defense, testified as follows: "My name is Earl McCullough, and I live at Falk's Store. I am a fruit and stock raiser. My age is twenty years. I am acquainted with defendant, and know where his slaughter-house is in Payette, and was there about the twenty-fourth of October last, about noon. At that time I saw a slim, light-complected man, of middle age who was a stranger to me. He was not on his horse at the time, but I suppose he was on horseback, as there were two horses there. I saw five head of cattle there, but I can't describe them. I noticed one bald-faced cow among them. They were mostly all dark-colored cattle. I heard some conversation between this man and the defendant at that time in regard to the selling of the cattle and about the price. Twenty-six dollars a head was agreed on, I believe. I saw the defendant pay this man some money--paper money, currency. I was there probably five minutes. After the defendant had his preliminary examination, he employed me to go out and see if I could see anything of this man; and I went over to Ontario, Nyssa, and up the river around Emmett, and around there. I guess I was around for nearly two weeks." Other witnesses corroborate the testimony of McCullough. We think the presumption arising from the possession of the hides of the alleged stolen...