State v. Mellor

• Decision Date: 09 July 1928
• Docket Number: 4699
• Citation: 272 P. 635,73 Utah 104
• Court: Utah Supreme Court
• Parties: STATE v. MELLOR

272 P. 635

73 Utah 104

STATE v. MELLOR

No. 4699

Supreme Court of Utah

July 9, 1928

Rehearing Denied December 19, 1928.

Appeal from District Court, Seventh District, Sanpete County Dilworth Woolley, Judge.

Elgin Mellor was convicted of grand larceny, and he appeals.

AFFIRMED.

Lewis Larson, of Manti, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

STRAUP J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ., concur.

OPINION

STRAUP, J.

The defendants James Mellor and Elgin Mellor, father and son, were jointly charged in one count with grand larceny, stealing six head of sheep, and in another count with having received stolen property knowing it to have been stolen. James was found not guilty on both counts. Elgin was found guilty on the first count and not guilty on the second. He appeals and complains that the evidence was insufficient to justify the verdict, that the court erred in refusing to charge as requested by him, and of misconduct of a juror who it is alleged went to sleep during the course of the trial.

There is no direct evidence of asportation by either of the defendants. The state, for conviction, relied on proof of the larceny by some one, recent possession of the sheep by the accused and conflicting claims made by them as to how and where they became possessed of the sheep. Our statute on the subject (section 8285, Comp. Laws Utah 1917) provides that "larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. Possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt." In considering the statute, this court, in the case of State v. Potello, 40 Utah 56, 119 P. 1023, held that, where there was no direct evidence of the asportation by the accused nor any direct evidence to connect him with the taking of the property, mere proof of the larceny and recent possession of the stolen property in the accused did not make a prima facie case of guilt, and that, in such case, to make a prima facie case, it was essential, on the part of the state, to prove, not only the larceny and recent possession in the accused, but also that he failed to make a satisfactory explanation of his possession. The appellant gave evidence to show that he purchased the sheep from another and the circumstances thereof. In such respect he testified that he at his residence acquired the sheep, six lambs, from one driving a band of sheep through the country, in exchange for one and three-quarters tons of oats for feed. In such particular he was corroborated by the testimony of other witnesses. Such evidence, the appellant contends, was undisputed, and hence that he not only satisfactorily but indisputably explained and accounted for his possession; and that therefore the court erred in not directing a verdict of not guilty as requested by him. On the other hand, it is contended by the state, and it gave evidence to show, that the accused made conflicting claims as to the manner of obtaining possession of the sheep and as to the circumstances and means thereof, claims which were inconsistent with the claim that the appellant had purchased the sheep from another, and inconsistent with the circumstances thereof as claimed by the appellant, and that therefore the question of whether the possession of the sheep was or was not satisfactorily accounted for was one of fact for the jury. Some of the conflicting claims consisted of statements made in the absence of the appellant by the father, 89 years of age, statements that his son traded wether lambs for the sheep in question, and other statements that the father raised the sheep and sold them to his son. When the son's attention by the officers was called to these statements, he said they were not true; and, when asked where he got the sheep he stated "from a man up south," and that he bought the 2-year old ewe claimed to have been stolen from his father, and that he told his father to tell Jensen (one of the owners of the sheep) if he came for the sheep to say he had sold them to him. At other times the appellant, however, also stated that he purchased the sheep from another by giving him one and three-quarters tons of oats for feed. When the officers got the father and son together one of the officers asked the father again "to tell his story," but the father remained silent and finally asked his son if he should do so. When the officer told the father "to tell the straight of it," the son asked the officer in the presence of Jensen if there was anything they could do to compromise, and said to Jensen that, if the sheep were his sheep, he was welcome to them. The sheep were re-branded and re-marked by the appellant on October 4, 1927, as testified to by him. But there was evidence to show that the sheep were not stolen or taken from the owner until October 17. That the sheep belonged to the alleged owners and that they were purloined from them by some one is not in serious dispute. There thus being proof of the larceny by some one, of recent possession of the stolen property in the accused, and of conflicting claims as to their possession and as to where and from whom the sheep were obtained and the time during which they were possessed by them, the case was properly submitted to the jury.

The appellant requested the court to charge the jury on the subject of circumstantial evidence. The court gave a charge on the subject. It is not pointed out by the appellant wherein the charge did not state the substance of the request. A comparison of the charge and of the request shows that the substance of the request was given, in some particulars even in language of the request. The assignment in this particular is therefore not well founded.

Further requests to charge were also made:

"(7) You are instructed that the evidence of the recently unexplained possession of stolen property, standing alone, is not sufficient to justify a verdict of guilty, even in a case of larceny. In cases of larceny the mere unexplained possession of stolen property is not alone sufficient to warrant a conviction, but it is a circumstance tending to show guilt, that can be taken into consideration in determining the guilt of the accused persons; and such unexplained possession and other evidence tending to show guilt justifies the jury in arriving at a verdict of guilty, if the same, taken as a whole satisfy the minds of the jury beyond a reasonable doubt and to a moral certainty that the persons accused are guilty of the larceny."

"(9) You are instructed that the mere possession of stolen property, unexplained by the defendants, however soon after the taking, is not sufficient to justify conviction. It is a circumstance, which, taken in connection with other testimony, is to determine the question of guilt. Yet, if you believe from the evidence, that the defendants were found in the possession of the property described in the information, this is a circumstance tending in some degree to show guilt, but not sufficient, standing alone and unsupported by other evidence, to warrant you in finding them guilty. There must be in addition to proof of possession of stolen property, proof of corroborating circumstances tending of themselves to establish guilt. These corroborating circumstances may consist of acts or conduct or declarations of the defendants, or any other circumstances tending to show guilt of the accused. If the jury believe the property was stolen, and was seen in the possession of defendants shortly after being stolen, the failure of the defendants to account for such possession, or show that such possession was honestly obtained, is a circumstance tending to show their guilt, and the accused are bound to explain the possession in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence discloses any such.

"(10) The jury are instructed that the possession of stolen property in a case of larceny is a circumstance tending to prove guilt only where it appears that the defendants acquired the possession by their own act or with their concurrence or knowledge. The possession must be personal and exclusive, or it must be the possession of some person or persons by the consent and will of the accused, and in either case the possession must involve a distinct and conscious assertion of possession by the accused."

These the court refused. After stating the substance of the information, the material allegations thereof which the state was required to prove beyond a reasonable doubt, defining grand larceny and stating the essential elements thereof, instructing the jury as to presumption of innocence, the burden of proof on the state to prove all of the material allegations of the information beyond a reasonable doubt, defining reasonable doubt, and giving what generally is called "stock instructions," the court charged the jury that:

"You are instructed that if you find and believe from the evidence beyond a reasonable doubt that the said defendants did, on or about the time charged in the information and within this county and state, steal, take or drive away any one or more of the sheep mentioned and described in count one of the information, with the intention then and there permanently to deprive the owner or owners of his or their property, that the property so stolen, taken or...