225 P. 332 | Ariz. | 1924
— The appellants John and Albert Allen are prosecuting this appeal from a judgment of conviction of burglarizing the dwelling-house of W. W. Coleman, on or about March 30, 1922.
The defendants and Coleman, and in fact most of the witnesses in the case, were ranchers or farmers, engaged in growing small grain, grain hay, and potatoes in what is known as Garland Prairie, Coconino county. The Coleman crop of oats for 1921,
“The stipulation between the county attorney, for the state of Arizona, and the defendants, is evidence in*321 this case, and you are instructed to give said evidence the same weight and consideration as if Miss Ellefson testified to such orally on the stand.”
It is contended it was error to refuse their request. We hardly think it was necessary that the court should have told the jury what was admitted as evidence should be considered as such. The fact of its admission gave the stipulation that standing. It needed no special mention, bnt, like every other item of evidence, was to be weighed by the jury uninfluenced by any word or action of the court. If the fact that appellants could lawfully have taken oats from the Ellefson place had any bearing whatever upon the question as to whether they unlawfully took them from the Coleman dwelling, we think the appellants got the benefit of it without the court’s emphasizing the fact by an instruction. Because there was open to appellants an honest way to get the oats might amount to nothing towards showing appellants pursued that way. Always there is the opportunity to be honest when one acts otherwise.
It is next said the court should not have instructed on the evidentiary effect of possession of recently stolen property, because, it is said, there was no substantial evidence that the oats in appellants’ possession were stolen, and, at all events, the instruction singled out and gave undue prominence to that feature of the evidence.
The instruction was conditioned that the jury must first find that the property was stolen before possession thereof could be considered as any evidence, and even then they were advised it was only a circumstance from which, if unexplained, they might infer appellants were concerned in the theft. The instruction correctly states the rule as to the evidentiary effect of possession of recently stolen property, as frequently announced by this court, and we think the rule generally followed throughout the
As to whether there was any substantial evidence that the oats found in the possession of appellants were stolen, we will simply say: Appellants were seen driving along the road from the direction of the Coleman place, in the direction of the Allen place, at about the time the burglary of the Coleman house is thought to have taken place, with a load of sacked grain and baled hay. Immediately after they had gone by, there was found upon the road a sack of oats which, on the trial, was identified as a part of the Coleman oats. One witness testified that he saw the sack almost instantaneously after the appellants’ vehicle had passed, and one of the appellants (Albert Allen) subsequently admitted having lost a sack of oats at that place. There was testimony that a wagon was tracked from- the Coleman place to the Allen place upon this occasion.
It is also claimed the court invaded the province of the jury in singling out this feature of the evidence and calling their attention to it and to its evidentiary value. If the instruction were in any of its aspects unfavorable to appellants, the criticism might be well taken. The inference that may be drawn from the possession of recently stolen property being one of fact according to the great weight of authority may be explained away and shown to be innocent. If it is explained, no inference of guilt could be drawn from it. If the possession is recent, exclusive, and unexplained, then the jury may justly conclude that the possessor may have been connected with or concerned in the corpus delicti, whether burglary or larceny. Wharton, Criminal Evidence (10th ed.), par.
It is' next contended the evidence was insufficient to support the verdict especially as to the appellant Albert Allen. This proposition is largely predicated upon the fact that the evidence was almost wholly circumstantial. The weight of the evidence, whether direct or circumstantial, is a matter for the jury. When the evidence is of the latter kind, it is for the jury to say whether it excludes every reasonable hypothesis consistent with the innocence of the accused. That it may not be so convincing to us, or may be hard to reconcile in some of its aspects, or may appear in some of its features to refute or negative guilt, or to cast doubt thereon, will not justify the court in setting aside the verdict of the jury.
More of the circumstances developed in the trial directly affect John Allen than Albert. But one
When the jury retired to consider its verdict, the court gave them several forms of verdict. It is complained that no form provided for a verdict of “not guilty” with reference to Albert Allen. That is also true with reference to the other appellant. We must assume that the jury were men of common sense and experience, and it would seem very improbable that they would have returned a verdict of guilty against Albert Allen had they entertained any doubt of his guilt. We cannot believe that they were influenced by the absence of the form of verdict suggested. It would have been no trouble nor required any skill to change the form of verdict handed to the jury to be used by them in event they found both defendants not guilty, or to use that form in preparing another had they concluded Albert Allen was not guilty but that John Allen was.
It is contended that the county attorney was guilty of gross misconduct and prejudicial error in asking the defendant John Allen, upon his cross-examination, the questions following:
“Q. Mr. Hamilton had searched you a few days before that for stolen beef? A. Yes, sir, on his own hook.
“Q. Without a warrant? A. Yes, sir; he had a warrant, but he had signed his own name to it.
*325 “Q. How many other times has yonr place been searched for stolen goods?
“Mr. Lewis: I object to that as immaterial.
“The Witness: Only that one time has it ever been searched that I know anything about it.
“Mr. Gold: Q. Searched this time for stolen beef? A. Yes, sir.
“Q. Did he tell you what he came up for? A. He didn’t tell me at the time, told me after he read the warrant.
“Q. And he didn’t happen to find anything at that time, did he? A. No, sir; he didn’t find nothing.
“Q. And you were still angry about that search? A. Certainly. Why wouldn’t I be? Isn’t that a slur to a man’s name?
“Q. Now, I don’t know what you mean by that. How many times have you been arrested for violations of the law?
“Mr. Lewis: We object to that, your Honor.
“The Court: Objection sustained.”
This kind of cross-examination has been many times condemned by this court. It is not fair and ought not to be indulged in by prosecuting officers, and we will not hesitate to reverse for such misconduct when the proper exception is taken at the trial. Britt v. State, 25 Ariz. 419, 218 Pac. 981; Walker v. State, 23 Ariz. 59, 201 Pac. 398. Where the accused is represented by counsel who sits by and acquiesces in such aspersions upon his client, without asking the court to rule thereon, it presents a different question than where objection is interposed. When the question of the admissibility of the evidence is not raised at the trial, it cannot be said that its admission was error reviewable by the appellate court, since there was no ruling of the lower court. The assignment is not upon any ruling of the court, but is directed solely at the character of the questions. If the admission of such evidence when not objected to should be determined to be erroneous, counsel might well, especially where the case was a difficult one,
We have carefully examined the transcript of the testimony, not with a view of weighing it or of determining whether we approve of the jury’s verdict, but solely to determine if upon any view thereof the jury was justified in finding appellants guilty of the very serious charge of burglary. Taking into consideration the jury’s opportunity to see the witnesses and hear them tell their stories, and their right and power to believe and accept some of the evidence as true and disbelieve and reject other parts of it as false, and thus to reconcile conflicts and contradictions, there is ample in the record to support the verdict of guilty.
Not finding any reversible error, the judgment of conviction is affirmed.
McALISTER, O. J., and LYMAN, J., concur.