State v. Wilson

• Decision Date: 18 March 1941
• Docket Number: 6864
• Citation: 111 P.2d 868,62 Idaho 282
• Parties: STATE, Respondent, v. WILFORD WILSON, Appellant
• Court: Idaho Supreme Court

111 P.2d 868

62 Idaho 282

STATE, Respondent, v. WILFORD WILSON, Appellant

No. 6864

Supreme Court of Idaho

March 18, 1941

CRIMINAL LAW-BURGLARY-EVIDENCE, SUFFICIENCY OF.

1. It takes more than mere suspicion to send a man to prison for a felony, and there must be substantial evidence, either direct and positive, or circumstantial, which must be not only consistent and compatible with the guilt of accused but inconsistent with any reasonable theory of his innocence.

2. In prosecution for burglary, conviction could not be sustained where evidence for the state was wholly circumstantial and based upon merest suspicion.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. Doran H. Sutphen, Judge.

Appeal from judgment of conviction for crime of burglary in the first degree. Reversed.

Reversed and remanded with direction.

Frank Croner and J. G. Hedrick, for Appellant.

When from an examination of the Record, it clearly appears that the defendant charged with crime has not had a fair and impartial trial, or where there is no competent and legal evidence to support the verdict, the judgment will be reversed and a new trial granted. (State v. Jones, 25 Idaho 587; State v. Blank, 33 Idaho 730; State v. Sullivan, 34 Idaho 68; State v Grover, 35 Idaho 589.)

And where the evidence can be reconciled with either the theory of innocence or guilt, the law requires that the theory of innocence be adopted, and a new trial should be granted. (State v. Grover, supra; State v. Lumpkin, 31 Idaho 175.)

Bert H Miller, Attorney General, Leo M. Bresnahan, Assistant Attorney General, and Chas. O. S. Scoggin, Prosecuting Attorney of Camas County, for Respondent.

The jury is the sole judge of the evidence and credibility of witnesses; and where the evidence is sufficient to sustain the verdict, the judgment will not be set aside. (State v. McLennan, 40 Idaho 286, 231 P. 718; State v. Brown, 53 Idaho 576, 26 P.2d 131; State v. Brassfield, 40 Idaho 203, 232 P. 1.)

AILSHIE, J. Morgan and Holden, JJ., concur. BUDGE, C. J., Givens, J., (Dissenting).

OPINION

AILSHIE, J.

This is an appeal from a judgment of conviction. Appellant was charged by information with breaking and entering a barn during the nighttime of November 8, 1939, with intent to commit larceny. The barn was situated on a farm about two and one-half miles northeast of Fairfield in Camas county. In the barn were two grain bins in which was stored a considerable quantity of Turkey Red wheat. Mr. Cluer, owner of the wheat, drove out to the barn about 7 A.M. of November 9th and found that the doors had been broken open during the previous night and claims there was "a hole in the wheat," which, he estimated, represented a loss or disappearance of 75 to 100 bushels which was in the bin the evening before. After investigations by Cluer and the sheriff of the county, appellant was arrested, charged with breaking into the building in the nighttime and taking some of this wheat. Trial resulted in conviction of appellant of burglary of the first degree, with recommendation of clemency.

The principal errors assigned on this appeal are: (1) That the verdict is not sustained by the evidence; (2) that the court erred in denying defendant's motion to suppress certain evidence, illegally obtained by the sheriff at the time of and subsequent to appellant's arrest; (3) in permitting the sheriff to testify to certain alleged statements made by the defendant while under arrest; and (4) allowing the witness Boren to testify to certain conversations had between himself and defendant's witness Miller.

The conclusion which we have reached, as to the sufficiency of the evidence, will render it unnecessary to discuss any other specification of error.

The state called B. F. Wilson, defendant's father, who testified that the load of wheat, hauled by defendant on the night of November 8th, was taken "from the old Harvey house" which was situated on the Harvey farm; and that the grain stored in the house was his (the witness') grain and had been grown by him on the Harvey place. It is true that, on cross-examination, he said he was not present at the granary when the wheat was loaded, but he insisted that he knew it was his grain the defendant hauled on that occasion. John B. Miller, called by defendant, testified that he worked for defendant and went with defendant to load the grain, on the evening of November 8th, and that he (the witness) shoveled the grain out of the bin, at the Harvey house, into the truck.

The other evidence, except the testimony of defendant himself, was wholly circumstantial and chiefly the merest suspicion, not worthy to enter the classification of circumstantial evidence. It takes more than mere suspicion to send a man to prison, for a felony in Idaho,--there must be substantial evidence, either direct and positive, or circumstantial. Circumstantial evidence must be not only consistent and compatible with the guilt of an accused, but it must also be inconsistent with any reasonable theory of his innocence. (State v. Burke, 11 Idaho 420, 427, 83 P. 228; State v. Nesbit, 4 Idaho 548, 556, 43 P. 66; State v. Seymour, 10 Idaho 699, 712, 79 P. 825; State v. Lumpkin, 31 Idaho 175, 178, 169 P. 939; State v. Marcoe, 33 Idaho 284, 286, 193 P. 80; State v. Grover, 35 Idaho 589, 597, 207 P. 1080; State v. Yancey, 47 Idaho 1, 4, 272 P. 495; State v. Sorensen, 37 Idaho 517, 526, 216 P. 727; State v. McLennan, 40 Idaho 286, 302, 231 P. 718; State v. Dawn, 42 Idaho 210, 213, 245 P. 74; State v. Hix, 58 Idaho 730, 741, 78 P.2d 1003.) State v. Burke, supra, is, in many respects, parallel with the case at bar and supports the holding herein.

In this case there was an utter lack of any substantial evidence to justify a conviction. The attempt to discredit the testimony of the state's own witness, B. F. Wilson, was unsuccessful, as was also the effort to impeach the witness Miller, by proof of extrajudicial statements contrary to his testimony in court, wholly inadequate to accomplish its intended purpose.

The judgment is reversed and the cause is remanded with direction that a new trial be granted, in case the trial judge is satisfied by the prosecuting attorney that further and additional evidence can be obtained tending to show the guilt of defendant, otherwise to dismiss the action.

Morgan and Holden, JJ., concur.

DISSENT BY: BUDGE

BUDGE C. J. (Dissenting)--

Appellant Wilford Wilson convicted of first degree burglary prosecutes this appeal from the judgment.

Briefly the evidence discloses that a quantity of Turkey Red wheat had been stored in a barn on the Leland Cluer ranch. On the evening of November 8, 1939, when inspected by Mr. Cluer, the barn was locked and no tire tracks were visible in the vicinity of the barn. Early on the morning of November 9th Cluer discovered the barn had been broken into and approximately 75 to 100 bushels of wheat had been removed and the tracks of six tires were found near the barn and leading to it. Plaster casts were made of these tracks. The record also discloses that on the night of November 8th defendant hauled a load of wheat to Gooding, remaining there part of the night from about 2 A.M. until morning and then the wheat was hauled on to Wendell where it was sold to the Wendell Elevator Company, the load containing approximately 75 bushels. From casts made from the tracks made by the tires on the truck used to haul the wheat sold to the Wendell Elevator Company by appellant and comparisons made with the casts made of tracks found near the Cluer barn it appeared that the tracks were very similar if not identical. From samples of wheat taken from the Cluer barn, from the wheat delivered by appellant to the Wendell Elevator Company and from wheat taken from a barn used as a granary by appellant and his father, comparisons and tests were made the result showing that the three samples were all similar in kind and quality.

Appellant's six assignments of error present five main questions upon which appellant seeks a reversal.

It is urged that the court erred in denying the motion of appellant to suppress certain evidence, the truck and casts taken of its tires, it being urged the truck was taken without a warrant or consent of appellant.

It has been determined by this court that one who consents to have his property searched by an officer without a warrant cannot complain that the search was illegal and there is no error in the court refusing to suppress evidence obtained by his consent and invitation. (State v. McLennan, 40 Idaho 286, 231 P. 718; State v. Beach, 51 Idaho 183, 3 P.2d 539; State v. Kaiser, 49 Idaho 351, 288 P. 154; State v. West, 42 Idaho 214, 245 P. 85.)

From the record it appears that title to the truck in question was in the name of B. F. Wilson, father of appellant. While there was evidence, upon the hearing of the motion to suppress that appellant owned a part interest in the truck such claim was not made by appellant or B. F. Wilson prior to taking of evidence on the motion to suppress and such title was not of record. With relation to B. F. Wilson, appellant's father, the record contains evidence, although conflicting, from which the court could have found that B. F. Wilson gave his consent to the taking of the truck for the purposes of evidence. Though it be conceded that it subsequently appeared that appellant also owned a part interest in the truck it still does not appear that the court erred in refusing to suppress the evidence. There is no contention that appellant's arrest was unlawful. With relation to the arrest and the taking of the truck the record discloses that the sheriff visited the B. F. Wilson ranch, saw the truck in the yard, and as a result of what he saw appellan...