State v. Robbins

• Decision Date: 31 October 1877
• Citation: 65 Mo. 443
• Parties: THE STATE v. ROBBINS, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 443

THE STATE

v.ROBBINS, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

Richard H. Field for appellant.

The jury should have been permitted to pass upon the guilt or innocence of the accused, from the case made by all the facts and circumstances, without the intervention of the court singling out the bare fact of possession of the lost goods, which was two months and fifteen days, as appears from the evidence, after they were lost or taken. Fackler v. Chapman, 20 Mo. 253; State v. Hundley, 46 Mo. 421; State v. Smith, 53 Mo. 271; Wag. Stat. 1106, § 30. Recent possession of stolen goods, unexplained by the party so found in possession, naturally suggests a circumstance of guilt to the suspicious minds of men, without the double force it has, as they consider it emanating from the intelligence of a learned judge. To tell the jury that the State has made out its case, if the defendant has failed to explain a single fact, it does seem to me is weighing the sufficiency of the testimony within the meaning of the statute which forbids such; it usurps the power of the jury to entertain a reasonable doubt of the guilt of a defendant, if they cherished such. Chaffee v. U. S., 18 Wall. 544. The statute (Wag. Stat. 1101, § 1) declares that all issues of fact in a criminal cause shall be tried by a jury. The effect of this second instruction was to withdraw from the jury the real issue: Is the defendant guilty or not guilty, by substituting the question: Is the possession of the property satisfactorily accounted for? State v. Gray, 37 Mo. 463; State v. Bruin, 34 Mo. 540. The burden of proof rests upon the State throughout in a criminal case, to prove the charge as laid against the accused, and never shifts upon the defendant--the burden is only on the defendant to establish any independant fact or issue that he affirms, for instance, insanity or former conviction, or any other matter in avoidance. In these cases the burden is not one that has shifted upon him, but one that he assumes of his own volition. If this position is not true, then trial by jury in a criminal cause is a farce and a delusion. 18 Wall., Chaffee v. U. S. 544; 7 Blackford, Doty v. State 427; 1 Gray, Commonwealth v. McKie 61; 26 Maine, State v. Flye 312.

J. L. Smith, Attorney General, for the State, cited State v. Gray, 37 Mo. 463; State v. Williams, 54 Mo. 170; State v. Lange, 59 Mo. 418.

NORTON, J.

Defendant was indicted at the November term, 1876, of the criminal court of Jackson county for grand larceny. At a subsequent term of said court he was tried and convicted. Motions for new trial and in arrest of judgment having been filed and overruled, he brings his case here by appeal. The counsel for defendant insists that the court erred in giving the second instruction on the part of the State to the effect that the “possession of property proven to have been recently stolen, is presumptive evidence of the guilt of the party in possession, unless such possession is satisfactorily explained or accounted for.” While the instruction is open to verbal criticism, and the principle announced in it might have been expressed in a form more hypothetical, yet, when it is considered in connection with the first instruction given, the first given for defendant, and the one given by the court of its own motion, we think the law applicable to the case was fairly given, and that the...