State v. Ponthier, 10183

• Decision Date: 13 January 1969
• Docket Number: No. 10183,10183
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Norbert PONTHIER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 364

449 P.2d 364

92 Idaho 704

The STATE of Idaho, Plaintiff-Respondent, v. Norbert PONTHIER, Defendant-Appellant.

No. 10183.

Supreme Court of Idaho.

Jan. 13, 1969.

Manweiler & Webb, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and William D. Collins, Asst. Atty. Gen., Boise, for respondent.

McFADDEN, Justice.

On April 9, 1966, the Ada County Sheriff's office received a call reporting an automobile accident on Highway 44, near the Shady Acres Motel, about twelve miles west of Boise. Upon arrival at the scene of the accident, the officers found a 1954 Buick automobile resting in a canal and several packages of cigarettes and cigars floating in the water. The defendant, whom witnesses identified as the driver of the car, had been taken to the Shady Acres Motel to dry his clothes. The defendant was arrested at the motel by a deputy sheriff and by such officer charged with drunken driving. The 1954 Buick, which the evidence revealed was not registered to the defendant, was towed from the canal and impounded, and officers spent part of the day retrieving the cigarettes and cigars which were found floating downstream from the car. In all, 792 packages of cigarettes and 18 five-packs of cigars were recovered from the canal. A subsequent search of the 1954 Buick, pursuant to issuance of a search warrant, produced several more five-packs of cigars.

After the Boise police learned of a reported burglary of the Nu-Way Market in Boise, which occurred not more than seven hours prior to the accident which occurred at 6:00 a. m., the defendant was charged with first-degree burglary. The Nu-Way Market reported the theft of approximately 200 cartons of cigarettes, several packages of cigars, some cookies, a .25 caliber automatic pistol, and $590.00 in cash. Only the cigarettes and cigars above referred to were found in the defendant's possession. There was no direct evidence linking the defendant with the burglary. Rather, the defendant's conviction rests upon asserted unexplained possession of a large quantity of cigarettes and cigars shortly after the burglary.

An information was filed on June 3, 1966 charging the defendant with first degree burglary. He pleaded not guilty, was convicted by a jury on January 23, 1967 and was sentenced to a term not to exceed fourteen years in the Idaho State Penitenitary. Following the appropriate motions, the defendant filed a notice of appeal to the Supreme Court of Idaho and has now appealed from the district court's order denying him a new trial and from the judgment finding him guilty of first degree burglary.

On appeal the defendant contends that the verdict of guilty is against the manifest weight of the evidence for the reason that the cigarettes and cigars found in the canal were not sufficiently identified as the cigars and cigarettes stolen from the Nu-Way Market and that, in any event, the State failed to prove that the defendant had conscious and personal possession of this property, as required by law to sustain a burglary conviction on this kind of circumstantial evidence. The defendant seemingly does not question the rule of law that the unexplained possession of recently stolen property raises an inference of guilt. He contends only that the property found in the canal and automobile was not shown to be stolen and was not in his possession.

It is well settled in this state that the unexplained possession of recently stolen property raises an inference of guilt and may be enough by itself to justify a conviction of burglary. As this court stated in State v. Lott, 90 Idaho 161, 409 P.2d 119 (1965),

'Appellant contends that mere possession of recently stolen goods is not of itself sufficient evidence upon which to convict the possessor of those goods of the crime of burglary. The rule in this state is to the contrary. In our most recent opinion on this issue, State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965), we held that the defendant's possession of recently stolen property was sufficient evidence upon which the jury could find him guilty of the crime of burglary.' 90 Idaho at 163, 409 P.2d at 120.

To the same effect is State v. Bogris, 26 Idaho 587, 144 P. 789 (1914). This rule is also supported by a majority of the other jurisdictions. State v. James, 194 Mo. 268, 92 S.W. 679 (1906); People v. State, 270 P.2d 380 (Okl.Cr.App.1954); Yawn v. State, 94 Ga.App. 400, 94 S.E.2d 769 (1956); People v. Weaver, 18 Ill.2d 108, 163 N.E.2d 483 (1960); Jordan v. State, 119 Ga. 443, 46 S.E. 679 (1904); People v. Frahm, 107 Cal.App. 253, 290 P. 678 (1930).

In order to secure a conviction on the basis of such circumstantial evidence, however, the burden is upon the State to identify the goods found in the defendant's possession as the same goods stolen in the burglary. It is our opinion that this burden was satisfied in the case at bar. Appellant relies heavily upon this court's decision in State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 902 (1921), for the proposition that goods are not sufficiently identified merely by showing that they correspond in kind or quantity to the goods stolen in a burglary. Appellant, however, has misconstrued that decision. The reversal in State v. Sullivan, supra, rested upon the State's failure to prove the corpus delicti of a burglary. The State, having failed in State v. Sullivan to prove that any burglary actually occurred, could not rely upon proof of the defendant's possession of allegedly stolen property as proof that a burglary had in fact occurred. In the present case, on the other hand, the State quite conclusively proved by evidence unrelated to the stolen property that a burglary did occur. Unlike State v. Sullivan, then, the State here did not use the defendant's possession of the stolen property to prove that a burglary did occur (to establish the corpus delicti), but rather used it only for the purpose of establishing appellant's connection with the burglary proven by other evidence.

Appellant also relies upon several other cases in which it was held that a mere correspondence between the kind and quantity of goods found in the defendant's possession and the goods reported stolen was insufficient to sustain a conviction. Hilligas v. State, 55 Neb. 586, 75 N.W. 1110 (1898); State v. Hampton, 275 S.W.2d 356 (Mo.1955); Smith v. State, 44 Tex. Cr.R. 81, 68 S.W. 510 (1902). In Hilligas v. State, however, the description of the property found in the defendant's possession was completely irreconcilable with the description of the stolen property. In Smith v. State the defendant was at best in possession of only one hog of the same description as the hog stolen, and in State v. Hampton, the defendant was found to have in his possession one roll of dimes wrapped in a green wrapper, which matched the description of a roll of dimes taken in a robbery.

The result in these cases was manifestly correct, but they are of no assistance to this appellant, who was not found in possession of only one item such as anyone might normally have corresponding with the stolen property. Rather there was sufficient evidence from which the jury could find that appellant had been in possession of the large number of cigarettes and cigars. This larger number of items and the correspondence in kind and quantity between the goods found and the goods stolen sufficiently distinguishes the present case from those cases relied upon by appellant. This distinguishing element was well stated in Jordan v. State, 119 Ga. 443, 46 S.E. 679 (1904), where the defendant was convicted of stealing soap and cigars. The court stated that his possession of one or two boxes of the same kind of cigars as those stolen undoubtedly would not be sufficient to sustain a conviction,

'But having in possession White Knight and Capadura cigars in quantities corresponding to those stolen, and beyond the amount usually kept by one not a merchant, made the circumstance much more suspicious. The probative value of the coincidence, that the defendant had the quantity and brand of goods lost would increase in geometrical ratio with the finding of each additional article, so that when it was proved that he not only had White Knight and Capadura cigars, but the Virginia Cheroots also, the case became far stronger.' 46 S.E. at 680

In the present case there is substantial evidence from which the jury could infer that immediately prior to the automobile accident, the defendant had had in his possession not only the same brands and approximate quantity of cigarettes as were stolen, but also a similar kind and quantity of cigars. Moreover, another incriminating circumstance is the fact that the cigarettes and some cigars were found along with certain other cigars which were positively identified by price markings on the package as coming from the Nu-Way Market. Appellant argues that these identified cigars could have been purchased rather than stolen. However, the manager and owner of the store testified that they were not sold to the appellant. Several courts have sustained convictions in cases in which unidentifiable property of the same general description and quantity as the stolen property was found in the defendant's possession along with property positively identified as stolen property. Yawn v. State, 94 Ga.App. 400, 94 S.E.2d 769 (1956); Reynolds v. State, 166 Tex.Cr.R. 83, 311 S.W.2d 848 (1958); State v. Gates, 246 Iowa 344, 67 N.W.2d 579 (1954); People v. Wing, 23 Cal.App. 50, 137 Pac. 47 (1913); Dawson v. State, 99 Ga.App. 115, 107 S.E.2d 847 (1959). This court in State v. Love, 76 Idaho 378, 283 P.2d 925 (1955), affirmed a burglary conviction where it was shown that the defendant was found in possession of three bottles of whiskey corresponding in brand and quantity to certain whiskey reported stolen in a burglary. Although the whiskey could not be positively identified, certain clothing found in the defendant's possession was identified as clothing taken in the...