Wiley v. State

• Decision Date: 05 June 1922
• Docket Number: 22159
• Citation: 129 Miss. 196,91 So. 906
• Court: Mississippi Supreme Court
• Parties: WILEY v. STATE

91 So. 906

129 Miss. 196

WILEY v. STATE

No. 22159

Supreme Court of Mississippi

June 5, 1922

March 1922

1 BURGLARY. Evidence as to identity of goods found in defendant's possession held sufficient to present a jury question.

A mercantile store was burglarized at night, and six pairs of W. L. Douglas shoes stolen therefrom, one pair of which was W. L. Douglas russet shoes size No. 7. The defendant later was found in possession of a pair of W. L. Douglas russet shoes No. 7, and otherwise corresponding to the stolen pair referred to. Defendant testified that he came into possession of the shoes on the night of the burglary and a few hours thereafter by purchase from another person, but before the trial, when found in possession of the shoes by the officers the defendant made an entirely different statement explaining such possession; and the evidence showed that the merchants whose store was burglarized were the only merchants in that community handling W. L. Douglas shoes. Held, the evidence sufficiently identified the shoes found in possession of the defendant as being one of the pairs of shoes stolen, so that it was a question for the jury.

2 BURGLARY. Criminal law. Instruction on defendant's possession of stolen goods erroneous for not requiring it to be recent, but harmless in view of defendant's testimony.

In a case where defendant is charged with burglary and larceny and admitted as a witness in his own behalf that he acquired possession of the stolen goods in question only a few hours after the crime was committed, and the court instructed the jury for the state that mere possession of such stolen goods by the defendant, unexplained, was prima facie evidence of defendant's guilt, without the qualification that such possession must have been recent after the crime, held, said instruction, although erroneous, was harmless because of defendant's said admission that his possession was recent after the commission of said crime.

3. CRIMINAL LAW. Refusing correct instruction where subject-matter was amply covered by others is not error.

It was not error for the court to refuse an instruction although correct, where the subject-matter of such instruction was amply covered by other instructions given in the case.

HON. C P. LONG, Judge.

APPEAL from circuit court, Alcorn county, HON. C. P. LONG, Judge.

Rich Wiley was convicted of burglary, and he appeals. Affirmed.

Affirmed.

Ely B. Mitchel, for appellant.

It is recent possession of stolen goods that raises a reasonable presumption of a person's guilt in whose possession the stolen goods are found.

Counsel for appellee admits that the above statement of the law is correct but argues, that the following charge, "The court charges the jury for the state that the possession of stolen goods which have been taken from a burglarized building, not satisfactorily explained is prima-facie evidence of both the burglarly and the larceny," given for the state is correct although it leaves out the essential element as to time in the presumption of guilt arising from the possession.

The jury are to decide a case according to the law and the evidence. The law is given to the jury by the court through proper instructions which are based upon the evidence of the case. In this case counsel for appellee contends that the evidence aids this incorrect instruction and with the assistance of the evidence the instruction is a correct statement of the law. If this is a correct instruction when assisted by the facts in the case, who is to make the evidence assist the instructions? The jury of course, and if they knew the law it would be useless for the court to charge them. This charge leaves out the idea of presumption of guilt arising from the recent possession of stolen goods. In Davis v. State, 50 Miss. 86, 92, Judge TARBELL uses the following language: "The first instruction for the prosecution directs the jury that if the accused is found in possession of goods feloniously taken from Mr. Phillips and had failed to give a satisfactory account of such possession they should find him guilty.--The question of time and the idea that Davis might have been the receiver or purchaser of the goods, in his possession being pretermitted."

As a whole the instructions leave no discretion in the jury and thus they lead to certain conviction. The first wholly omits the rules as to time as an element in the presumption of guilt arising from possession.

This instruction is peculiarly obnoxious, inasmuch as possession, and not the recent possession, is said by it to raise a legal presumption of guilt. Hence, it is doubly erroneous. Harper v. State, 71 Miss. 202; Stock v. State, 58 Miss. 657; Mathews v. State, 61 Miss. 155; Jones v. State, 26 Miss. 247; Jones v. State, 30 Miss. 653.

The appellant asked the following instruction: "The court instructs the jury for the defendant that the burden is upon the state to show to a moral certainty and beyond all reasonable doubt that the defendant did not buy the shoes from Shell Haley, and unless the state has done this you will find the defendant not guilty." The court refused this instruction.

The appellant testified that he bought the shoes from Shell Haley. Shell Haley testified that he sold him the shoes. This I consider is a reasonable explanation of the possession of the shoes by Rich Wiley. If this is a fact then the above instruction should have been given to the jury for them to decide whether or not his explanation was a reasonable explanation and to inform them that the burden was upon the state to show that this was not a reasonable explanation.

In Jones v. State, 30 Miss. 653, was an indictment for the larceny of a knife. The knife was found in the possession of Jones about three weeks after its loss. It was held upon two grounds that the evidence was not sufficient to support the verdict. The reason for this view of the case was this: "first, the deportment of the accused in connection with the charge and finding of the knife; second, the reasonableness of his account of how he came by the knife."

In order for a jury to decide a case correctly it is very important for the jury to know upon whom the burden of proof rests. In this charge they were told that the burden was upon the state to show that the appellant's explanation of how he came into possession of the shoes was not a reasonable explanation, or in other words, to show that he did not buy the shoes from Shell Haley as testified to by the witnesses for the appellant, and this charge is the only one among all the charges that states upon whom the burden rests, upon this state of facts. Therefore, when this instruction was refused by the court he committed error which we consider is reversible error, and for this reason alone this case should be reversed.

D. C. Enochs, assistant attorney-general, for the state.

The appellant complains that the lower court erred in granting in behalf of the state the second instruction set out on page forty of the record, whereby the jury was charged that the possession of stolen goods, which have been taken from a burglarized building, not satisfactorily explained, is prima-facie evidence of both the burglary and the larceny.

The appellant complains that it is the "recent" possession of stolen goods, etc., that constitutes prima-facie evidence. It is true that the rule, is that "recent" possession raises a reasonable presumption against the possessor. But the jury need not be charged that it is the "recent" possession in a case like this, where the defendant, himself swears on the witness stand that he has had the possession of the property since six o'clock A. M. of the morning following the night of the burglary. According to the sworn testimony of the appellant himself, he had had the possession of the shoes since within less than twelve hours of the burglary. The strength of this presumption of guilt arising from recent possession of stolen goods after the time of the theft, is stronger or weaker, depending upon the length of time that elapsed between the time of the theft and the possession of the goods by the accused, and also upon the nature of the property. As said by this court in Davis v. State, 50 Miss. 86, at the bottom of page 94: "From the nature of the case, it is not possible to fix any precise period within which the effect of this rule can be limited; it must depend not only upon the mere lapse of time, but upon the nature of the property and the concomitant circumstances of each particular case." If the appellant had not testified that he had had the shoes in his possession since the morning after the night of the burglary, there might be some merit in this contention of the appellant.

The appellant complains that the lower court erred in refusing him the instruction set out at the top of page forty-one of the record where it was sought to charge the jury that the burden of proof was upon the state to show beyond a reasonable doubt, that the appellant did not buy the shoes from Shell Haley, and that unless the state discharged that burden, the jury should find the appellant not guilty.

It will be noted that the court charged the jury as shown on page forty-three, of the record, that it should acquit the appellant if it believed the defendant bought the shoes from Shell Haley, notwithstanding they may have been stolen from the burglarized store. And it will be noted, as shown on page forty-four of the record that the court charged the jury to acquit the appellant, if the state had failed to show beyond a reasonable doubt and to a moral certainty that the appellant was not at home on the night of the burglary.

The account of his possession, given by the appellant, is unreasonable. To say the least, the...