State v. Sullivan

• Decision Date: 30 June 1921
• Citation: 199 P. 647,34 Idaho 68
• Parties: STATE, Respondent, v. FRANK SULLIVAN, EDWARD GRAUTMAN, FRANK EDWARD WALSH and C. W. DARCEY, Appellants
• Court: Idaho Supreme Court

199 P. 647

34 Idaho 68

STATE, Respondent, v. FRANK SULLIVAN, EDWARD GRAUTMAN, FRANK EDWARD WALSH and C. W. DARCEY, Appellants

Supreme Court of Idaho

June 30, 1921

BURGLARY-PROOF OF CORPUS DELICTI-WHEN POSSESSION OF STOLEN GOODS BURGLARIOUS TOOLS OR ESCAPE AFTER ARREST MAY BE SHOWN-CHARACTER OF ENTRY TO CONSTITUTE BURGLARY-WHEN ADVISORY INSTRUCTION TO ACQUIT SHOULD BE GIVEN-WHEN VERDICT OF GUILTY AND JUDGMENT OF CONVICTION WILL BE SET ASIDE.

1. It is a well-settled principle of criminal law that a conviction for crime cannot be had unless the corpus delicti, that is the fact that a crime has been actually perpetrated, is first established.

2. Where proof of the corpus delicti is made by circumstantial evidence, it should be established by proof of such character as will exclude all uncertainty.

3. Upon a prosecution for burglary, it is competent to show that the property alleged to have been stolen was found in the possession of the defendant, provided that the burglarious entry has been proven.

4. To warrant an inference of guilt from the possession of personal property charged to have been recently stolen, it should be a distinct and conscious possession on the part of the accused.

5. Possession of burglarious tools by the accused, or his escape after arrest, is competent evidence against him upon a trial on a charge of burglary, provided it is shown that a burglary has been committed.

6. The "breaking" required at common law to constitute the crime of burglary is not an essential element of the crime in this state, under C. S., sec. 8400; but the entry, in either de- gree of burglary, must be with intent to commit grand or petit larceny or a felony, and such intent must exist at the time of the entry.

7. Under C. S., sec. 8963, if the court deems the evidence insufficient to warrant a conviction, it should advise the jury to acquit; if the jury disregards such instruction, upon motion for a new trial the verdict should be set aside on the ground that it is not sustained by the evidence.

8. Proof of the charge in criminal cases involves proof of two distinct propositions; first, that the act itself was done and, secondly, that it was done by the person charged; and the defendant is not required to answer a charge against him until the prosecution offers sufficient evidence to clearly establish the fact that the crime charged has been committed.

9. If the proof fails to establish either of the elements necessary to constitute the crime charged, the verdict and judgment of conviction thereon will be set aside.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. H. F. Ensign, Judge.

Appellants were convicted of the crime of burglary in the first degree and they appeal. Reversed and remanded, with instructions for new trial.

Reversed and remanded, with instructions.

C. O. Stockslager, Frank T. Disney and Hawley & Hawley, for Appellants.

While the information charges the defendants with burglarizing the store of Gorman Brothers, the evidence fails to show that the store was burglarized by the defendants at any time or that the crime of burglary was committed at all in connection with the said store, and the evidence fails to show that the store was entered by anyone at any time for the purpose of larceny or that any of the goods alleged to have been stolen might not have been purchased in any store carrying the same line of goods in Idaho or elsewhere. (C. S., secs. 8400, 8945, 8995; State v. Burke, 11 Idaho 420, 83 P. 228; People v. Flannelly, 128 Cal. 83, 60 P. 670; People v. Forsythe, 65 Cal. 101, 3 P. 402; Bird v. United States, 187 U.S. 118, 23 S.Ct. 42, 47 L.Ed. 100; Hudson v. State, 101 Ga. 520, 28 S.E. 1010; Walker v. State, 139 Ala. 56, 35 So. 1011.)

That the defendants escaped from the county jail is a circumstance tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight according to the circumstance of the particular case. (People v. Flannelly, supra; People v. Forsythe, supra.)

Flight is a circumstance tending to show guilt, but it is only a slight circumstance. (Hudson v. State, supra.)

Roy L. Black, Attorney General, James L. Boone, Dean Driscoll and S.E. Blaine, Assistants, and H. D. Heist, Pros. Atty., for Respondent.

Possession of stolen goods, together with all other circumstances connecting defendant with the crime of burglary, must be considered. (9 C. J. 1070, 1082; Jordan v. State, 119 Ga. 443, 46 S.E. 679; State v. James, 194 Mo. 268, 5 Ann. Cas. 1007, 92 S.W. 679; 4 R. C. L., sec. 34, p. 440; Collins v. People (Colo.), 193 P. 634; Smith v. State, 85 Tex. Cr. 355, 212 S.W. 660; People v. Morrell, 28 Cal.App. 729, 153 P. 977; State v. Willoughby, 180 N.C. 676, 103 S.E. 903; State v. Sanford, 8 Idaho 187, 67 P. 492.)

Where facts warrant a finding of larceny and the circumstances of that larceny show that it could not have been committed without an unlawful entry, the jury is justified in inferring that by whatever means the entry was effected the appellants made use of the same. (People v. Lang, 142 Cal. 482, 76 P. 232; State v. Sparks, 40 Mont. 82, 135 Am. St. 608, 19 Ann. Cas. 1279, 105 P. 87; People v. Morrell, supra; Cline v. State, 21 Ariz. 554, 192 P. 1071.)

Possession of burglarious tools is legal evidence tending to connect an accused with the crime. (9 C. J., sec. 131, p. 1073; 4 R. C. L., sec. 34, pp. 440, 441.)

The escape or attempted escape of the accused may be considered by the jury to show consciousness of guilt. (16 C. J., sec. 1073, p. 554.)

Where there is substantial evidence to support the verdict and the judgment founded thereon, it has been the consistent holding of this court not to disturb a judgment founded on the verdict. (State v. Steen, 29 Idaho 337, 158 P. 499; State v. Askew, 32 Idaho 456, 184 P. 473; State v. Ford, 33 Idaho 689, 197 P. 558; State v. White, 33 Idaho 697, 197 P. 824; State v. Colvard, 33 Idaho 702, 197 P. 826.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

The appellants were jointly informed against by the prosecuting attorney of Lincoln county, Idaho, on March 26, 1919, charged with having burglariously entered the store building of Gorman Brothers, situated in the town of Jerome, in said county, which crime was alleged to have been committed on September 3, 1918. Appellants entered a plea of "not guilty." The court denied the motion of appellants Grautman and Walsh for a separate trial, and appellants were jointly tried upon said information and by the jury found guilty of burglary in the first degree, as charged in the information, and sentenced to a term in the penitentiary for not less than seven nor more than fifteen years. From this verdict and judgment they appeal to this court, and assign numerous errors for a reversal of said judgment.

The errors relied on are: That the court erred in refusing to grant defendant's motion for an instructed verdict; that the court erred in pronouncing judgment upon defendants, and in sentencing each of them to the penitentiary, particularly for the reason that there was not sufficient evidence introduced during the trial to warrant a conviction of the defendants; and that the verdict of the jury was against the law and the evidence.

The record in this case contains much irrelevant matter, including the testimony taken at the preliminary hearing and the examination of the jurors on their voir dire at the trial. Counsel for appellants disclaim responsibility for this objectionable matter appearing in the record, and it does not appear who is responsible for incorporating the same into the record on appeal; but we call attention to the fact that it does not conform to the rules and practice of this court with reference to records on appeal, so that the error may not be repeated.

The state's evidence tends to show that defendants were camped about a mile and a half from the business part of Jerome, and about half a mile from the Oregon Short Line station, near the main line of said railroad company; that on the fourth day of September, 1918, they were arrested at their said camp by the town marshal of Jerome, who at the time of such arrest made an examination of the same and found thereabouts several articles, such as clothing, groceries, a package of blank keys, files, saws, drills and sundry other articles. The arrest was made without any complaint having been made or warrant issued, but upon the request of the occupant of the premises to the town marshal to go to this place and "run out a lot of hoboes." The officer making the arrest, after taking possession of the various articles found about this camp, instituted a search for an owner; meeting Jerry Gorman, one of the copartners of Gorman Brothers, upon the street, he asked him if he had lost goods of any kind from his store, to which Gorman replied "None that I know of." He proceeded along the street to where the marshal exhibited to him a sack of groceries which had been gathered up at this camp; after he had looked them over, Gorman said that a number of the articles of groceries were brands that Gorman Brothers handled in their store, and it looked to him "as if he had been touched." The two then proceeded to the store, and the officer spoke about some shirts of a particular brand, of which the witness had five boxes similar to the shirt mentioned; upon an examination of the boxes it was found that one of them was empty. Later it was found that two of the cartons containing shoes were empty, and Gorman identified shoes taken from defendants as shoes like those in the stock of Gorman Brothers. The witness testified that his firm had the exclusive agency for selling in the town of Jerome this particular brand...