State v. Seymour

• Decision Date: 08 March 1905
• Citation: 79 P. 825,10 Idaho 699
• Parties: STATE v. SEYMOUR
• Court: Idaho Supreme Court

79 P. 825

10 Idaho 699

STATE v. SEYMOUR

Supreme Court of Idaho

March 8, 1905

SUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT-EVIDENCE CONSISTENT WITH INNOCENCE-ADMISSION OF EXEMPLARS FOR COMPARISON OF HANDWRITING.

1. Where S. was arrested on a charge of the larceny of a horse and at the time of his arrest the animal was found in his possession, and the defendant upon his trial showed that he took the horse up in pursuance of an order from one K., who he supposed, had a right to the possession of the animal, and that he (S.) had never claimed the animal as his own, but had at all times disclaimed ownership and represented that the animal belonged to K., and that he had kept and used the animal in an open and notorious manner, and there is no conflict in any of the material facts proven, the defendant is entitled to his acquittal and a verdict against him should be set aside and a new trial granted.

2. Where all the evidence in the case is consistent with defendant's innocence, and all the circumstances shown in the case are explained on that theory and appear reasonable the defendant should be acquitted.

3. The admission in evidence of papers irrelevant to the record for the sole purpose of creating a standard of comparison of handwriting should not be allowed except in cases where the papers are conceded to be genuine, or are such as the opposing party is estopped to deny or fall within some equally well recognized exception.

(Syllabus by the court.)

APPEAL from District Court in and for Bingham County. Honorable James M. Stevens, Judge.

The defendant was convicted of the crime of grand larceny, and from the judgment and order denying his motion for a new trial appealed. Reversed.

Judgment reversed and a new trial granted.

Hawley, Puckett & Hawley and J. D. Millsaps, for Appellant.

We look in vain for any evidence which would show the act or knowledge of a criminal in the taking and keeping of the horse in question by the defendant. In the absence of any such evidence, we are bound to accept his explanation of his possession, corroborated as it is by the evidence of Kimball and Birch. This case is parallel in every material respect with the case of State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Marquardsen, 7 Idaho 352, 62 P. 1034. The possession of stolen property, unexplained, is evidence of guilt; but where a reasonable explanation is given, and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury cannot arbitrarily ignore such evidence before a legal conviction can be had. The state must have established the accused person's guilt of the crime charged by legal evidence and beyond a reasonable doubt, and until that is done the presumption of innocence is an absolute shield to defendant. Upon what the jury bases its verdict of guilty we cannot conceive, unless it was prejudice against the defendant. 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; 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 many of the states the question as to whether or not a party can introduce a signature or handwriting for the sole purpose of having it compared with the handwriting in question in the cause is controlled by statute; but we think we can safely say that in all states where there is no special statute governing the matter the common-law rule prevails, and such signature or handwriting cannot be introduced as exemplars for the purpose of comparison. (Stokes v. United States, 157 U.S. 187, 15 S.Ct. 617, 39 L.Ed. 667; Hickory v. United States, 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170; Moore v. United States, 91 U.S. 270, 23 L.Ed. 346; Rogers v. Ritter, 79 U.S. 317, 20 L.Ed. 417; Williams v. Conger, 125 U.S. 414, 8 S.Ct. 933, 31 L.Ed. 787; United States v. McMillan, 29 F. 247; Randolph v. Loughlin, 48 N.Y. 459; Miles v. Loomis, 75 N.Y. 294, 31 Am. Rep. 470; People v. Parker, 67 Mich. 222, 11 Am. St. Rep. 578, 34 N.W. 720; Vinton v. Peck, 14 Mich. 293; Van Sickles v. People, 29 Mich. 61; State v. Miller, 47 Wis. 530, 3 N.W. 33; Pierce v. Northey, 14 Wis. 9; Hazelton v. Union Bank, 32 Wis. 34; State v. Thompson, 132 Mo. 301, 34 S.W. 38; Bowen v. Jones, 13 Ind.App. 193, 41 N.E. 400; Hazzard v. Vickery, 78 Ind. 64; Shorb v. Kinzie, 100 Ind. 429; Burdick v. Hunt, 43 Ind. 381; Himrod v. Gilman, 147 Ill. 293, 35 N.E. 375; Jumpertz v. People, 21 Ill. 408; Massey v. Farmers' Nat. Bank, 104 Ill. 327; Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315; Hammond v. Wolfe, 78 Iowa 227, 42 N.W. 779; State v. Clinton, 67 Mo. 380, 29 Am. Rep. 506; Greenleaf on Evidence, sec. 581; 1 Roscoe's Criminal Evidence, sec. 5; Clay v. Alderson, 10 W.Va. 49; West v. State, 22 N.J.L. 212; Doe ex dem Henderson v. Hackney, 16 Ga. 521; State v. Givens, 5 Ala. 747; Kirksey v. Kirksey, 41 Ala. 640; Hawkins v. Grimes, 13 B. Mon. 257; Niller v. Johnson, 27 Md. 6; Tome v. Parkersburg etc. Ry. Co., 39 Md. 36, 17 Am. Rep. 540; Kenney v. Flynn, 2 R. I. 319.)

John A. Bagley, Attorney General, D. Worth Clark and O. P. Soule, for the State.

Can writings otherwise not admissible by reason of their being irrelevant to the issues in a cause be introduced in evidence for purposes of comparison? This is the question involved in the consideration of the sixth, seventh and eighth errors relied upon, and is one of the important, probably the most important, questions raised by this appeal, and a matter upon which this court has never been called upon to pass. Different courts have made different rulings upon this question, some permitting comparison by the jury or by experts of the writing already in the case and pertinent to the other issues involved, while in other cases such comparisons have not been permitted at all; while other courts of equal standing have taken the broad ground that writings either admitted to be genuine, or proved to be may be admitted as evidence for the sole purpose of comparison with the disputed writing. (See Code Civ. Proc., sec. 1870 subd. 9; Greenleaf on Evidence, p. 727, sec. 581; Calkins v. State, 14 Ohio St. 222; Baker v. Haines, 6 Whart. (Pa. St.) 284, 36 Am. Dec. 224; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; Depue v. Place, 7 Pa. 430; Travis v. Brown, 43 Pa. 16, 82 Am. Dec. 540.) The evils that may be suggested as likely to arise from the selection of particular writings for the purposes of comparison may be left, as all unfair or misleading evidence must be, to be corrected by other evidence and by the intelligent judgment of the court or jury. In our opinion, such evidence is conducive to the intelligent ascertaining of the truth, and the receiving of it in this case was not error. (Tyler v. Todd, 38 Conn. 218; State v. Hastings, 53 N.H. 452; Adam v. Field, 21 Vt. 526; State v. Ward, 39 Vt. 225; Farmers' Bank v. Whitehill, 10 Serg. & R. 110; Travis v. Brown, 43 Pa. 9, 82 Am. Dec. 540; Chance v. Indianapolis & W. G. R. Co., 32 Ind. 472; Macomber v. Scott, 10 Kan. 335; Wilson v. Beauchamp, 50 Miss. 24; Benedict v. Flanigan, 18 S.C. 506, 44 Am. Dec. 583; Roman v. Plunket, 2 McCord, 518; Bennett v. Mathewes, 5 S.C. 478; McCorkle v. Binns, 5 Binn. 340, 6 Am. Dec. 420; Baker v. Haines, 6 Whart. 284, 36 Am. Dec. 224; Vickroy v. Skilley, 14 Serg. & R. 372; Callan v. Gaylord, 3 Watts, 321; Lodge v. Phipher, 11 Serg. & R. 333; Farmers' Bank v. Whitehill, 10 Serg. & R. 110; Bank of Pennsylvania v. Jacobs, 1 Penr. & W. 161; Depue v. Place, 7 Pa. 428; Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169; Richardson v. Newcomb, 21 Pick. 317; Commonwealth v. Eastman, 1 Cush. 218, 48 Am. Dec. 596; Jewett v. Draper, 6 Allen, 435; McKeone v. Barnes, 108 Mass. 344; Commonwealth v. Coe, 115 Mass. 504; Costelo v. Crowell, 139 Mass. 590, 2 N.E. 698; Lyon v. Lyman, 9 Conn. 55; Ort v. Fowler, 31 Kan. 478, 47 Am. Rep. 501, 2 P. 580; Holmberg v. Johnson, 45 Kan. 197, 25 P. 575; Gilmore v. Swisher, 59 Kan. 172, 52 P. 426; Wilson v. Beauchamp, 50 Miss. 24; Garvin v. State, 52 Miss. 207; Calkins v. State, 14 Ohio St. 222; Koons v. State, 36 Ohio St. 195; Tucker v. Kellogg, 8 Utah 11, 28 P. 870; Moore v. Palmer, 14 Wash. 134, 44 P. 142; Hanriott v. Sherwood, 82 Va. 1; Tunstall v. Cobb, 109 N.C. 316, 14 S.E. 28; State v. Noe, 119 N.C. 849, 25 S.E. 812.) The rule in force in some of the states, and upheld by their courts, apparently for no other reason than that two hundred years ago the English courts, surrounded by entirely different conditions from those now prevailing in all civilized countries, had so decided, cannot be successfully maintained upon any theory which takes into consideration either ordinary justice or common sense. The statute of 1854 was forced upon parliament by reason of the English people having reached a point of civilization and enlightenment that precluded their longer being bounded in this regard by the narrow and unjust rulings in this regard of many of their higher courts. The new era inaugurated in the judicial procedure of the nation was hailed with delight by the highest judicial officers, as will be plainly observed by a reading of the various decisions interpreting the new statute rendered shortly after its passage; not only was the change welcomed by the courts and the people, but the text-book writers as well loudly acclaimed the benefits and justice of the change. The technical rule of the common law, which was certainly not based on common sense, and which was directly opposed to the practice of our ecclesiastical courts, of our courts in India, of the French court, and of ...