State v. Pate

• Decision Date: 22 February 1927
• Parties: STATE, Respondent, v. PAUL PATE, Appellant
• Court: Idaho Supreme Court

253 P. 623

43 Idaho 648

STATE, Respondent, v. PAUL PATE, Appellant

Supreme Court of Idaho

February 22, 1927

BURGLARY-POSSESSION OF RECENTLY STOLEN PROPERTY-EVIDENCE INSUFFICIENT.

1. Evidence in prosecution for burglary held insufficient in failing to connect defendant with the crime.

2. Where breaking and entry is proved, state may show defendant's unexplained possession of recently stolen property as tending to connect him with burglary, but such proof does not raise presumption of guilt being merely evidence from which jury may convict.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Defendant was convicted of burglary in the first degree, and appeals. Reversed and remanded.

Reversed and remanded with instructions.

Turner K. Hackman, for Appellant.

The court erred in pronouncing judgment on defendant, for the reason that there was not sufficient evidence introduced during the trial to warrant his conviction. (State v Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Blank, 33 Idaho 730, 197, P. 821.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

A general specification of error to the effect that the evidence is insufficient to sustain the verdict, without reciting the particulars in which the alleged insufficiency consists, does not comply with the requirements of C. S., sec. 9068; and under such general specification of error the court will not review the evidence in the record to determine whether or not it is sufficient to sustain the verdict. (State v. Johnson, 39 Idaho 440, 227 P. 1052; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 ida. 403, 210 P. 494.)

Where it appears that a burglary was in fact committed, the possession of recently stolen property by the accused is a circumstance from which, in connection with all the evidence, the jury may presume, as a matter of fact, that he committed it. (Underhill's Crim. Evidence, 3d ed., sec. 573.)

VARIAN, Commissioner. Brinck, C., Wm. E. Lee, C. J., and Givens and T. Bailey Lee, JJ., concurring.

OPINION

VARIAN, Commissioner.

Defendant was convicted of the crime of burglary in the first degree and appeals from the judgment and an order denying a motion for a new trial.

The information charges that on or about the twenty-seventh day of January, 1925, about 3 o'clock A. M. of said day, the defendant did wilfully, wrongfully, feloniously and burglariously enter a certain store in Twin Falls, therein described, with intent to commit larceny. The defendant offered no evidence and the cause was submitted upon the state's evidence alone.

The record discloses the following facts: A police officer, about 2:30 or 3 o'clock on the morning of January 28, 1925, saw an empty automobile across the street from the Golden Rule Store building in Twin Falls. From a distance of half a block, he saw a young fellow run across the street from the store building to the car. The officer stepped out into the street to better observe the person running toward the car, and saw another young fellow run out of the side door of the Golden Rule Store to the car. When first seen, both men were carrying "dry goods." The car moved off and its occupants escaped without being identified by the officer. Later investigation showed that a hole had been cut in the panel of a door leading from the furnace-room of the building by means of which access was gained to the lock on the door. The outside door leading to the furnace-room was not fastened. When the stock was examined, it was found that shoe boxes had been taken down and merchandise removed, particularly a leather vest, underwear, shirts and socks.

Louis Kemble was arrested about midnight on February 21, 1925, wearing a leather vest, admitted in evidence as state's exhibit "B." At the trial he testified that he procured the vest from the defendant about 10:30 or 11 o'clock that evening, paying him therefor by check of that date for $ 3.50, payable to order of defendant. The check is in evidence, and when confronted by the police, defendant admitted receiving and indorsing it, but denied that it was given in payment for the vest in evidence, asserting that the check represented a loan. The vest was delivered to Kemble at defendant's room where he slept.

One Achenbach, who roomed over Moore's repair-shop in Twin Falls, where the defendant also roomed, testified that defendant was in his room at 5 o'clock in the afternoon until 7:30 the evening of January 27th, during which he and four or five others, including the defendant, had supper after which they all left the room. Achenbach returned after 12 o'clock midnight, but did not go to bed until about 6 o'clock the morning of January 28th. Defendant came to Achenbach's rooms with one Delmer Hines at 4:25 or 5:25 that morning. Hines went to bed at once, and the defendant shortly thereafter. Defendant told the officers that he was at Eden at a dance the night of January 27th, that he...