State v. Slusher

• Decision Date: 03 December 1923
• Docket Number: No. 24882.,24882.
• Citation: 256 S.W. 817,301 Mo. 285
• Parties: STATE v. SLUSHER.
• Court: Missouri Supreme Court

256 S.W. 817

301 Mo. 285

STATE v. SLUSHER.

No. 24882.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

W. E. Slusher was convicted of grand larceny, and he appeals. Reversed and remanded.

E. M. Tipton and Mosman, Rogers & Buzard, all of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and George W. Crowder, Asst. Atty. Gen., for the State.

WHITE, J.

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 rowboat belonging to one B. H. Spitler May 27, 1922. On the ad 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 rowboat 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 Nishna river before he lost his boat. Sunday morning, May 27th, he had occasion to use that 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 $35 or $40. 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 $4 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 $2 for it and bought it from Mr. Rounds. The state produced evidence to show that it was worth $30 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 $30.

I. At the close of the case the defendant presented 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 concedes 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, 294 Mo. 139, 241 S. W. 934, in the opinion by Judge J. T. Blair, 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 is 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....