State v. Swarens, No. 22896.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHigbee
Citation294 Mo. 139,241 S.W. 934
Decision Date22 May 1922
Docket NumberNo. 22896.
PartiesSTATE v. SWARENS.
241 S.W. 934
294 Mo. 139
STATE
v.
SWARENS.
No. 22896.
Supreme Court of Missouri, in Banc.
May 22, 1922.

[241 S.W. 935]

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

William Swarens was convicted of grand larceny, and he appeals. Reversed and remanded.

Howell H. Heck, of Rich Hill, Charles E. Gilbert, of Nevada, Mo., and A. T. Hamm, of Jefferson City, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller and R. W. Otto, Asst. Attys. Gen., for the State.

HIGBEE, J.


The defendant was convicted of grand larceny, and sentenced for two years in the penitentiary, and appealed. The charge is that he stole a tarpaulin, of the value of $50, the property of C. Williamson.

Williamson testified that he lived in Vernon county, near the north line of, the county; that he used the tarpaulin in the year 1919, put it in his machine shed on January 15, 1920, and on January 28 it was gone; that it had a mousehole in it; two or three holes in it at the time of the trial; that defendant lived across the line in Bates county; that he saw him on witness' premises several times trapping and hunting; that he was told on February 22, 1920, that the tarpaulin was in defendant's house; sued out a search warrant, and found it there on that day; that it was reasonably worth $50 at the time it was stolen. When the constable read the warrant to the defendant, Swarens said: "1 have something of that kind here. I don't know whose it is." He further said he had found it on his place 10 or 12 days before that.

The defendant testified that about February 12, 1920, he went to the south part of his farm to get a load of fodder, and found the tarpaulin behind a bunch of brush in the corner of his pasture, it having been thrown over the fence 10 to 20 feet; that he put it in his wagon, took it home, and put it in the front room to take care of it and keep it safe from mice; that he was taken sick the next day, and was confined to the house about 10 days; that his family was also taken sick, and that he had no telephone in the house. Two of his neighbors called on him on Sunday, February 22. They saw the tarpaulin, but nothing was said about it. They had heard that Williamson had lost his tarpaulin, and reported they had seen it in defendant's house, and no time was lost in procuring the warrant. The defendant denied taking the tarpaulin from Williamson's shed, and denied knowing it belonged to him.

The court, in an instruction not numbered instructed the jury, in substance, that if they found the defendant feloniously took, stole, and carried away the tarpaulin from the possession of Williamson, with intent, etc., that it was his property and of the value of $30 or more, then they should find the defendant guilty of grand larceny and assess his punishment at, etc.

By instruction No. 1 they were told that, if they found the tarpaulin was the property of Williamson, and that it was stolen in Vernon county on or about the _____ day of January, 1920, and that recently after it was stolen it was found in the exclusive possession of the defendant, then he is presumed to be the thief, and the burden is on him to overcome such presumption, and unless such possession is satisfactorily accounted for in a manner consistent with the innocence of the defendant by evidence in the case or the circumstances attending such possession, or by the habits and manner of life of the defendant, or unless such presumption is rebutted by evidence showing the good character of the defendant or by evidence that he was at some other place when said property was stolen, or by the weight of all the evidence, they should find the defendant guilty as charged in the information.

1. Instruction No. 1, in the use of the words we have italicized, assumes that the property was stolen. A finding that the tarpaulin was stolen was necessary to conviction, for it is possession of stolen property that raises the presumption of guilt. State v. Sasseen, 75 Mo. App. 197, 203; 25 Cyc. 132.

2. This instruction reads In part:

"Or unless such presumption is rebutted by evidence showing the good character of the defendant or by evidence that he was at some other place when said property was stolen, or by the weight of all the evidence," etc.

The words we have italicized put an undue burden on the defendant. Where there is no evidence of the defendant's good character,

241 S.W. 936

the rule in this state is that the defendant's explanation of his possession should be such as reasonably to satisfy the jury that it was innocently or honestly acquired. State v. Moore, 101 Mo. 316, 330, 14 S. W. 182. The general rule elsewhere is that the presumption is removed if the explanation leaves the matter in doubt. "In other words, when such a reasonable explanation of the possession is given, the prosecution must establish the falsity of it beyond a reasonable doubt." 25 Cyc. 137.

3. Another vice in this instruction is that it purports to cover the whole case, and authorizes a conviction of grand larceny without a finding that the tarpaulin was of the value of $30 or more. That was an issue in the case. The two instructions are therefore in conflict, and the jury would not know which to adopt as their guide in arriving at their verdict. State v. Herell, 97 Mo. 105-110, 10 S. W. 387, 10 Am. St. Rep. 289; Wojtylock v. K. & T. Coal Co., 188 Mo. 260, 282, 87 S. W. 506; Rissmiller v. Railway Co. (Mo. App.) 187 S. W. 573 (4); State v. Harris, 232 Mo. 317, 321, 134 S. W. 535; Hall v. Coal & Coke Co., 260 Mo. 351, 369, 168 S. W. 927, Ann. Cas. 1916C, 375; Johnson v. Building Co., 171 Mo. App. 543, 560, 153 S. W. 511; Traylor v. White, 185 Mo. App. 325, 331, 170 S. W. 412; 38 Cyc. 1604.

There are other interesting questions discussed in the briefs of learned counsel, which need not be considered.

The judgment is reversed, and the cause remanded.

JAMES T. BLAIR, O. J., concurs in separate opinion, in which WOODSON, GRAVES, DAVID E. BLAIR, and ELDER, JJ., concur.

GRAVES, J., concurs in separate opinion, in which WOODSON, and DAVID E. BLAIR, JJ., concur.

DAVID E. BLAIR, J., concurs in separate opinion, in the second paragraph of which JAMES T. BLAIR, C. J., concurs.

WALKER, J., dissents in separate opinion.

JAMES T. BLAIR, C. J. (concurring).

Instruction "1," summarized in the opinion of HIGBEE, J., contains about the usual formula employed in this state, with the approval of this court, respecting the effect of the appearance in a larceny case of a showing that the accused was found in the exclusive possession of recently stolen property. The soundness of the doctrine of this court which authorizes instructions of the kind is open to the gravest doubt. The rule now in force is well illustrated in State v. Kelly, 73 Mo. 608. In that case an instruction was approved which reads as follows:

"On the one hand, the law presumes in this, as in all other criminal trials, that the defendants are innocent of the crime charged against them, and allows this presumption to continue until overcome by evidence which proves their guilt; and, on the other hand, where property has been stolen, and recently thereafter the same property, or any part thereof, is found in the possession of another, such person is presumed to be the thief, and, if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him."

Properly to understand this instruction and its real effect the words "beyond a reasonable doubt" must be supplied in sense after the words "prove their guilt" at the end of the first clause. Numerous subsequent decisions have followed this decision and approved instructions of like character. The holding is squarely in conflict with nearly all the authorities and decisions. The error resides in treating the inference from recent, exclusive, and unexplained possession of stolen property as a presumption of law. It is not so, as is demonstrated from a consideration of the instruction given in the instant case. See State v. Hodge, 50 N. H. 510. Mr. Bishop (3 New Criminal Procedure, § 740 et seq.) expresses his views thus:

"1. The just doctrine of this subtitle is believed to be, that, when the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case; among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on its being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror's opinion, and—

"2. The greater number of the cases, especially the more recent ones, considered in connection with the familiar proposition that the law is a system as well of reason as of authority, expressed in not quite uniform terms and varying more or less in their outward forms, sustain the doctrine thus stated.

"3. The leading later cases, covering a dozen years or more, are, for the convenience of the practitioner, considering that the doctrine in some of our states is not now the same as in earlier years, here in a note inserted in the alphabetical order of the states, without reference to what aspect of the question they sustain. It will be comforting to the well wishers of our jurisprudence, who examine these cases, and who remember the condition of the law on this subject 50 years ago, to note that very little now remains in our reports, of unfortunate old doctrines which have melted before inflowing light. Among the views now exploded,

"Sec. 741. Prima Facie Case—Burden Shifting.—Formerly it was often laid...

To continue reading

Request your trial
78 practice notes
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...360, l.c. 360-361; Moies v. Eddy, 28 Mo. 382, l.c. 382-383; Stinwender v. Creath, 44 Mo. App. 356, l.c. 361, 366-367; State v. Swarens, 294 Mo. 139, l.c. 149-156, 159, 241 S.W. 934, l.c. 937-940; State v. Sagerser, 84 S.W. (2d) 918, l.c. 919; State v. Nibarger, 339 Mo. 937, l.c. 942, 98 S.W......
  • State ex rel. United Mut. Ins. Assn. v. Shain, No. 37730.
    • United States
    • United States State Supreme Court of Missouri
    • April 16, 1942
    ...Becker, 289 Mo. 660, 233 S.W. 641; Taylor v. Pullem, 152 Mo. 434, 53 S.W. 1086; State v. Lee, 303 Mo. 246, 259 S.W. 798; State v. Swarens, 294 Mo. 139, 241 S.W. 934; Heller v. Lutz, 254 Mo. 704, 164 S.W. 123; City to Use of Bank v. Donohue, 190 Mo. 407, 89 S.W. 386; Klocke v. Klocke, 276 Mo......
  • State v. Martin, No. 43226
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1953
    ...root out of our criminal procedure instructions that may be classified as being comments on the evidence. In the case of State v. Swarens, 294 Mo. 139, 241 S.W. 934, the court in banc condemned an instruction [364 Mo. 266] that told the jury that the possession, by defendant, of recent stol......
  • State v. Denison, No. 38862.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1944
    ...assignment Number Eleven is not well taken in appellant's motion for new trial. State v. Culbertson, 74 S.W. (2d) 375; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Tisher, 119 S.W. (2d) 212; 4 Mo. Law Review, p. 71; State v. Hodge, 50 N.H. 510; State v. Jenkins, 213 S.W. 796; State......
  • Request a trial to view additional results
78 cases
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...360, l.c. 360-361; Moies v. Eddy, 28 Mo. 382, l.c. 382-383; Stinwender v. Creath, 44 Mo. App. 356, l.c. 361, 366-367; State v. Swarens, 294 Mo. 139, l.c. 149-156, 159, 241 S.W. 934, l.c. 937-940; State v. Sagerser, 84 S.W. (2d) 918, l.c. 919; State v. Nibarger, 339 Mo. 937, l.c. 942, 98 S.W......
  • State ex rel. United Mut. Ins. Assn. v. Shain, No. 37730.
    • United States
    • United States State Supreme Court of Missouri
    • April 16, 1942
    ...Becker, 289 Mo. 660, 233 S.W. 641; Taylor v. Pullem, 152 Mo. 434, 53 S.W. 1086; State v. Lee, 303 Mo. 246, 259 S.W. 798; State v. Swarens, 294 Mo. 139, 241 S.W. 934; Heller v. Lutz, 254 Mo. 704, 164 S.W. 123; City to Use of Bank v. Donohue, 190 Mo. 407, 89 S.W. 386; Klocke v. Klocke, 276 Mo......
  • State v. Martin, No. 43226
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1953
    ...root out of our criminal procedure instructions that may be classified as being comments on the evidence. In the case of State v. Swarens, 294 Mo. 139, 241 S.W. 934, the court in banc condemned an instruction [364 Mo. 266] that told the jury that the possession, by defendant, of recent stol......
  • State v. Denison, No. 38862.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1944
    ...assignment Number Eleven is not well taken in appellant's motion for new trial. State v. Culbertson, 74 S.W. (2d) 375; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Tisher, 119 S.W. (2d) 212; 4 Mo. Law Review, p. 71; State v. Hodge, 50 N.H. 510; State v. Jenkins, 213 S.W. 796; State......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT