The State v. Swarens

• Decision Date: 22 May 1922
• Parties: THE STATE v. WILLIAM SWARENS, Appellant
• Court: Missouri Supreme Court

241 S.W. 934

294 Mo. 139

THE STATE v. WILLIAM SWARENS, Appellant

Supreme Court of Missouri

May 22, 1922

Appeal from Vernon Circuit Court. -- Hon. B. G. Thurman, Judge.

Reversed and remanded.

Howell H. Heck and Charles E. Gilbert for appellant.

(1) Where the prosecution relies solely on circumstantial evidence to convict, an instruction defining it should be given. State v. Emmons, 225 S.W. 895; State v Stegner, 276 Mo. 440; State v. Massey, 274 Mo 588; State v. Nerzinger, 220 Mo. 47; State v Smith, 190 S.W. 288; State v. Bobbitt, 215 Mo. 43; State v. Donnelly, 130 Mo. 642; State v. Fairlamb, 121 Mo. 137; State v. Robinson, 117 Mo. 663; 8 R. C. L. p 180, sec. 172. (2) The trial court must give all necessary instructions, whether asked or not, and it is error to fail to instruct on circumstantial evidence when a conviction is sought on such evidence. Sec. 4025, R. S. 1919; State v. Gaultney, 242 Mo. 391; State v. Lackey, 230 Mo. 707. (3) The court should not deprive the jury of the right to deduce from the facts proved the conclusion that the crime committed, if any, is of a lower grade than that charged in the information. State v. Wienhardt, 253 Mo. 636; State v. Hoag, 232 Mo. 316; State v. Banks, 73 Mo. 597; State v. Branstetter, 65 Mo. 155; Carter v. Comm., 5 Ky.Op. 776; 16 C. J. 946. (4) If the relevancy of testimony is not apparent it should not be admitted on the promise of the prosecution to make it relevant. State v. Clayton, 100 Mo. 520; State v. Thomas, 99 Mo. 235; State v. Rothschild, 68 Mo. 52. (5) The court did not instruct on good character. Sec. 4025, R. S. 1919. (6) Manifestations of impatience by the court at the request of counsel are not only in bad taste, but may also constitute error. State v. Teeter, 239 Mo. 483; State v. Duestrow, 137 Mo. 87; State v. Musick, 101 Mo. 273. (7) Where circumstantial evidence alone is relied upon an instruction defining it should be given. State v. Maggard, 250 Mo. 335; State v. Douglas, 258 Mo. 294; State v. O'Brien, 265 Mo. 612; State v. Lewkowitz, 265 Mo. 636. (8) The trial court should not deprive the jury of the right to deduce from the facts proved the conclusion that the crime committed, if any, is of a lower grade than that charged in the information. State v. Wienhardt, 253 Mo. 636; State v. Hoag, 232 Mo. 316; State v. Banks, 73 Mo. 597; 16 C. J. 946.

Jesse W. Barrett, Attorney-General, and Albert Miller and R. W. Otto, Assistant Attorneys-General, for respondent.

The trial court did not err in refusing an instruction on circumstantial evidence. (a) When an appellant testifies and admits the possession of stolen property but claims that his possession thereof was obtained in such manner as not to constitute theft, the case is not one of circumstantial evidence. Willard v. State, 26 Tex.App. 126; Worsham v. State, 56 Tex. Crim. 253; State v. Overson, 30 Utah 22; Everett v. State, 15 Ga.App. 390; State v. Francis, 58 Mont. 659; Reddick v. State, 11 Ga.App. 150; Jourdan v. State, 9 Ga. 578; Love v. State, 9 Ga App. 874; 17 R. C. L. p. 79, sec. 85. (b) It is only when a conviction is sought on circumstantial evidence alone, that it is necessary to give an instruction on the weight of circumstantial evidence. State v. Hubbard, 223 Mo. 84; State v. Nerzinger, 220 Mo. 47; State v. Bobbitt, 215 Mo. 43; State v. Crone, 209 Mo. 331; State v. Massey, 274 Mo. 588; State v. Stegner, 276 Mo. 440; State v. Emmons, 225 S.W. 895; State v. Baird, 231 S.W. 626; State v. Steinkraus, 244 Mo. 152. (c) The presumption of guilt growing out of the recent possession of stolen property is a presumption of law and, in the absence of other rebutting evidence, must be met by proof on the part of the accused, explaining this possession, in a manner consistent with his innocence, or it will become conclusive against him. It is not a mere presumption of fact to be weighed with other evidence in the case. State v. Kelly, 73 Mo. 608; State v. Jenkins, 213 S.W. 799; State v. Weiss, 219 S.W. 370 et seq.; State v. Court, 225 Mo. 614 et seq.; State v. Wright, 199 Mo. 166; State v. Walker, 194 Mo. 263. (d) Defendant, having failed to ask any specific instruction relating to circumstantial evidence, and having failed to request the court to instruct on that subject; and having failed to except to the failure of the trial court to so instruct on circumstantial evidence is in no position to complain of the non-action of the court in respect to its failure to instruct on circumstantial evidence. State v. Lee, 231 S.W. 621; State v. Rowe, 271 Mo. 88; State v. Selleck, 199 S.W. 129; State v. Pfeifer, 267 Mo. 29; State v. Wansong, 271 Mo. 58; State v. Smith, 190 S.W. 288.

HIGBEE, J. James T. Blair, C. 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.

OPINION

In Banc.

HIGBEE J.

The defendant was convicted of grand larceny and sentenced for two years' imprisonment in the penitentiary, and appealed. The charge is that he stole a tarpaulin, of the value of fifty dollars, the property of J. 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 mouse hole 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's 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, "I have something of that kind here. I don't know whose it is." He further said he had found it on his place ten or twelve 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 ten to twenty 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 ten 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 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.

I. Instruction 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.]

II. 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 fendant. Where there is no evidence of the defendant's good character, 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.]

III. 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 thirty dollars or more. That was an issue in the case. The two instructions are therefore in conflict, and...