State v. Slusher
| Decision Date | 03 December 1923 |
| Parties | THE STATE v. W. E. SLUSHER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court; Hon. John M. Dawson Judge.
Reversed and remanded.
E M. Tipton and Mosman, Rogers & Buzard for appellant.
(1) The court erred in refusing defendant's demurrer, because (a) The presumption, or inference, created by the State's prima-facie case to the effect that the boat was taken, and was found soon thereafter in the possession of the defendant, was entirely overcome by defendant's positive testimony to the effect that he did not steal the boat. Guthrie v. Holmes, 272 Mo. 215; Mockowick v. Railroad, 196 Mo. 550; Mason v. United Rys., 246 S.W. 323; Canty v. Halpin, 242 S.W. 102; Hammond v. Emery B. T. & Co., 240 S.W. 174; Vallery v. Hesse Bldg. Mat. Co., 211 S.W. 95; Sowders v. Railroad, 127 Mo.App. 124; Brannock v. Jaynes, 197 Mo.App. 150; Bolman v. Bullene, 200 S.W. 1068; Glassman v. Harry, 182 Mo.App. 307; State v. Hollis, 284 Mo. 627; Whittaker v. Morrison, 1 Fla. 25, 44 Am. Dec. 627; State v. Shelly, 166 Mo. 616; State v. Roswell, 153 Mo.App. 338; Tebeau v. Ridge, 261 Mo. 547; Salmon v. Neipp, 246 S.W. 636; Ursch v. Heier, 241 S.W. 439; Downs v. Horton, 287 Mo. 414; State ex rel. v. Ellison, 268 Mo. 239; State v. Swearingin, 269 Mo. 177; Reynolds v. Maryland Casualty Co., 274 Mo. 83; Brunswick v. Ins. Co., 278 Mo. 154; Stack v. General Baking Co., 283 Mo. 396; Allen West Com. Co. v. Richter, 286 Mo. 691; Bragg v. Met., 192 Mo. 331. (b) The State did not prove that the taking of the property was without the owner's consent, and to support a charge of larceny the evidence must show that the taking was without the consent of the owner. State v. Waghalter, 177 Mo. 676; 25 Cyc. 113; Lynch v. State, 156 S.W. 1182; State v. Weatherman, 202 Mo. 6; Brillon Encyc. Crim. Law, sec. 733; 2 Bishop's-Cr. Law, sec. 811; State v. Morey, 2 Wis. 494, 60 Am. Dec. 439; Spiars v. State, 69 S.W. 533; Wisdom v. State, 61 S.W. 926; State v. Osborne, 28 Iowa 9; State v. Moon, 41 Wis. 684; People v. Caniff, 2 Parker Cr. 586; Hunt v. State, 231 S.W. 775. (c) The inference that it was taken without the owner's consent will not be indulged where the fact could have been proved by direct evidence. 22 Corpus Juris, 974; Onychimb v. Barker, 1 Atk. 21, 49 Willes 538, 125 Reprint, 1310, 11 E.R.O. 126; Sharp v. Mo. Pac. Ry. Co., 213 Mo. 517; 1 Greenleaf on Evidence (15 Ed.) sec. 50; Bent v. Louis, 88 Mo. 462; Bank of North America v. Crandall, 87 Mo. 208; Pratt v. Mo. Pac. Ry. Co., 139 Mo.App. 502; State v. Sherman, 137 Mo.App. 70. (d) The presumption or inference raised by the State's case was no greater than the presumption of innocence which attended defendant. Thus the presumption of innocence prevailed. Kline v. Laudman, 29 Mo. 259; State v. Hollis, 284 Mo. 627; State v. Fowler, 265 Mo. 190; State v. James, 133 Mo.App. 300. (2) The court erred in giving Instruction 2 at the request of the State, for the reason that same ignored the defendant's testimony of lawful possession. State v. Weinhardt, 253 Mo. 629; State v. Martin, 28 Mo. 530; State v. Bloomer, 231 S.W. 569.
Jesse W. Barrett, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent.
(1) The court did not err in refusing appellant's instruction in the nature of a demurrer to the evidence. It is the province of the jury to pass on the facts. State v. Horner, 266 Mo. 109, 112; State v. Thompson, 222 S.W. 789; State v. Jackson, 283 Mo. 18; State v. Linders, 246 S.W. 558; State v. Tracy, 243 S.W. 173; State v. Swarens, 241 S.W. 934. (2) In this case it was not necessary for Spittler, the owner of the boat, to testify in so many words that the boat was taken without his consent. All the evidence shows it was stolen, and as to this, there was no dispute. The issue was whether appellant's recent possession was compatible with honesty, and this, like any other conflicting evidence, was a question for the jury. State v. Swarens, 241 Mo. 934; State v. Jackson, 283 Mo. 18; State v. Jenkins, 213 S.W. 796. (3) Respondent must concede, however, in this case that instruction numbered 2, given by the court and purporting to cover the entire case, failed to take into consideration appellant's evidence. Such instruction, therefore, did not cover all the necessary elements in the case, and was error. State v. Connor, 252 S.W. 713; State v. Conway, 241 Mo. 271; State v. Hayes, 249 S.W. 49; State v. Collins, 237 S.W. 516; State v. Cantrell, 234 S.W. 800.
In the Circuit Court of Atchison County the appellant, W. E. Slusher, and one George Reynolds, were charged by information with grand larceny in that they stole a row boat belonging to one B. H. Spitler, May 27, 1922. On the third day of May, 1923, the appellant was tried on said charge, found guilty, and his punishment fixed at imprisonment for two years in the penitentiary, and from the judgment then rendered he appealed.
B. H. Spitler testified that he lived on an island in the Missouri River; he owned a row boat which he kept at the mouth of the Nishnabotna River on the Missouri side. The boat was fastened by a chain which was padlocked around a tree. Witness was acquainted with W. E. Slusher and George Reynolds by sight, and saw them camping on the south side of the Nishnabotna River before he lost his boat. Sunday morning, May 27th, he had occasion to use the boat. When he went to where it had been fastened it was gone. The chain had been cut, apparently by pinchers, which left marks on the part of the chain still locked to the tree. He described the boat and placed its value at thirty-five or forty dollars. A hammer and a grabhook which he kept in the boat were also gone.
He reported the loss to the sheriff, L. L. Chastain, who, with two deputies, Bob Andrews and William Capper, went to hunt for the boat and found it in the river near Slusher's house. Slusher said he bought the boat from a man named John Harmon, and paid four dollars for it. Afterwards Slusher came to Spitler and wanted to "settle" with Spitler about the boat; offered to buy it, or send it back, and pay Spitler for his trouble; told Spitler that he gave two dollars for it, and bought it from Mr. Rounds. The State produced evidence to show that it was worth thirty dollars or more.
The defendant testified that he did not loosen the boat from where it was fastened, and that he bought the boat from Bill Rounds at the mouth of the Nishnabotna River where he was camped. He offered evidence to show that the boat was not worth thirty dollars.
I. At the close of the case the defendant presented a demurrer to the evidence, which the trial court overruled, and that ruling is assigned here as error. Slusher was found in possession of the boat the next day after it was cut loose from where the owner had left it. Appellant cites a great many authorities, and presents his argument thus:
The recent possession of stolen property by the defendant raises a presumption of guilt, declare the authorities. A presumption of that character vanishes when evidence is produced in explanation of the occurrence. Since the State must rely upon that presumption to establish the defendant's guilt and the defendant testified without contradiction that he bought the boat from Bill Rounds, that explanation on his part puts the presumption to flight. Counsel apparently concede that the jury was not obliged to believe the defendant when he testified that he bought the boat, but, it is argued, the burden is on the State to prove its case; it is not on the defendant to prove his innocence. A presumption is not evidence. The State loses the benefit of the presumption arising from possession when the defendant offers evidence to explain it. The State, therefore, has no evidence which would support a verdict.
The argument is ingenious, but unsound, and based upon loose and inaccurate expressions in reported cases. The presumption of guilt arising from possession of recently stolen property has always been held sufficient to make out a prima-facie case for the jury. Some cases call it "presumptive evidence," and "prima-facie evidence." There are cases which hold that a presumption arising from a certain state of facts vanishes when evidence is introduced to explain the situation; but those are not larceny cases. The confusion in that matter, however, has been entirely cleared up in the recent case of State v. Swarens, 241 S.W. 934, in the opinion by James T. Blair, J., concurred in by a majority of the court, where it is held that the possession of property recently stolen is not a presumption of guilt, but is evidence of guilt. Being evidence it must be weighed by the jury. The doctrine of that case is not only in accordance with the great weight of authority, but is based upon sound reason. To find some person in possession of property recently stolen may raise at once in the mind a reasonable inference that the possessor is a thief, unless that possession is satisfactorily explained. The jury are to weigh that evidence. They may or may not believe the explanation. In this case they did not believe it. They had a right to disbelieve it, and to infer from such possession that the defendant was guilty, in view of his contradictory statements as to who sold him the boat. The demurrer could have been sustained only on the theory that such possession was not evidence at all, but a presumption which vanished upon the introduction of evidence. The trial court did not err in overruling the demurrer to the evidence.
II. The appellant further argues that the demurrer should have been sustained because the defendant did not testify that the boat was taken without his consent. It is conceded that the want of consent on the part of the...
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