58 Colo. 451 | Colo. | 1914
delivered the opinion of the • court:
October 23, 1913, plaintiff in error, Harry L. Beeler was convicted of the larceny of one head of neat cattle, the property of D. M. Walker, and sentenced to the penitentiary. He brings the case here on error, and asks us to reverse the judgment for the reasons, as he contends, that thq-corpus delicti was not established, that the evidence was insufficient to support the verdict, and the instructions erroneous.
January 15, 1913, Walker, while riding in company with one Huntley, came upon the carcass of a freshly killed and partly butchered young Hereford steer bearing his brand, about 250 or 300 yards from the house where Beeler lived with his parents. The body was still fresh and warm from animal heat, the head had been severed and carried away, the carcass was cut transversely across the middle, the back-bone severed and the brisket opened with an axe or hatchet. The animal was in prime condition, very fat and perfectly normal, sound and healthy. It had bled freely when killed, as evidenced by the clean white flesh, and hide, the absence of blood between the flesh and skin, and the colorless condition of the flesh side of the hide, and the vital organs were all sound, healthy and normal.
The theory of the prosecution was, that defendant rode from his barn or corral to a bunch of cattle belonging to Walker, cut out a steer and after driving it some distance, had shot it in the head, cut off the head and was quartering the carcass when he was interrupted or became frightened, took the head to the house, and later burned it.
1. Under these circumstances we think the evidence ample to show that a crime had been committed and that the jury were justified in finding that defendant perpetrated the crime; ip fact we do not see how they possibly could have arrived at any other verdict. Since the motion for a rehearing was granted we have read the bill of exceptions through with great care, and find that the evidence amply sustains the corpus delicti, and the guilt of the defendant. It would have been a travesty upon justice had the jury returned any other verdict.
2. In the former opinion we stated, “Perceiving no error in the instructions * * * the judgment will be affirmed.” Bitter complaint is now made because we disposed of the case,'as is said, without considering the instructions, and we will now discuss them. Instruction 1 defines the offense and tells the jury before they can convict defendant they must be satisfied from the evidence beyond a reasonable doubt that the crime charged was committed by him at Park county, Colorado. Instruction 2 defines a reasonable doubt and tells the jury the defendant is presumed to be innocent of the crime charged until proven guilty, and unless they are satisfied from the evidence beyond a reasonable doubt of his guilt,
Complaint is made of the expressions: “substantially inconsistent,” “practically incompatible,” “clearly and substantially made out,” “effect and significance of those facts.” In criminal cases, where the evidence is circumstantial, it is proper for the court to explain to the jury that circumstantial evidence is competent and
We do -not approve of this instruction or recommend it as a model. The court had better have stayed within the trodden path and not experimented with these unusual expressions in such an instruction; but it does not follow that the case should be reversed on this account. We should -not reverse the case unless it preju
3. There is no doubt but the court in using such expressions as “Substantially inconsistent,” “practically incompatible,” “clearly and substantially made out,” “effect and significance,” intended to safe-guard the rights of the defendant. The Century Encyclopedia and Dictionary defines “substantially” as, “with reality of existence.” In Cheeseman v. Hart, (C. C.) 42 Fed.
We are satisfied the word was used in the instruction, not as a matter of form, but as going to the substance of the inconsistency and placed a burden upon the people rather than the defendant, of which he cannot complain. It means as used in the instruction, having a reality of existence; that the inconsistency with his innocence which will warrant a conviction must have a substantial existence; that is, it must be of a true, actual, substantial character and have a well founded and substantial existence in fact. It was intended to show that the prosecution must prove that really and truly the facts and circumstances are inconsistent with the innocence of the defendant.
In Century Encyclopedia and Dictionary, “ clearly” is defined as “to leave no doubt.”—McEvony v. Rowland, 43 Neb. 97, 61 N. W. 124, defines “clearly” to mean: “without uncertainty, beyond a question, or beyond a reasonable doubt.” In People v. Wreden, 59 Cali. 393, it is held the expression ‘ ‘ clearly established by satisfactory proof,” is the full equivalent of established by satisfactory proof beyond a reasonable doubt. So we see the expression “clearly and substantially” as used in this instruction, simply meant beyond a reasonable doubt and was surplusage, adding nothing to the instruction and should have been omitted. In Moore and Ray v. Wilder, 66 Vt. 33, 28 Atl. 320, the court construes “practical” to mean: “what would be practical, reasonable, feas
The court told the jury that the effect and significance .of the facts and circumstances upon the minds of the jnry must not only be that the defendant was guilty beyond a reasonable doubt, but that he could not reasonably be innocent. “Effect and significance” as so used, means the result or conclusion in the minds of the jury. It. means that the evidence must leave a result or conclusion in their minds, not only that the defendant is guilty beyond a reasonable doubt; but that he could not reasonably be innocent and the facts and circumstances be true. If the facts and circumstances were clearly and substantially made out from the evidence on the trial to the satisfaction of the jury beyond a reasonable doubt and the effect and significance, that is, the result and conclusion produced from those facts on the minds of the jury is that defendant is guilty beyond a reasonable doubt, he has no ground for complaint.
While we said we do not recommend instruction 4 as a model, it is clear the expressions complained of as nsed in this instruction are not a departure from the law governing circumstantial evidence.
The former opinion is withdrawn and the judgment affirmed.
Affirmed.
Decision en banc.
Mr. Justice Bailey and Mr. Justice Scott not participating.
Mr. Justice Hill dissents.
Mr. Justice Hill dissenting:
It has also been given a different meaning and effect in civil cases.—Morris v. Hokosona, 143 Pac. (Colo. App.) 826; Elliott v. Caldwell, 43 Minn. 357; Hardin County v. Wells, 108 Iowa 174.
The conclusion that these words placed a burden upon the people, rather than the defendant, of which he cannot complain, in my opinion, is clearly erroneous. Had they referred to anything which the defendant was required to prove, there might be some force to this contention; but they refer solely to what the people must overcome, and in substance say they need not entirely 'overcome it, hut it is sufficient if they substantially do so, or if they practically do so. - As I view it, these expressions modify the words “inconsistent” and “incompatible” and the words “substantially inconsistent” do not mean the same as “inconsistent,” and “practically incompatible” does not mean the same as “incompatible,” but as given in this instruction it left it to the jury with these words thus qualified to enter upon the sea of conjecture, viz, to consider the effect of something less than, or almost essential, but not wholly, or not fully, and this in a case where conjectures are not to be permitted, but where it is elementary that the proof should establish the guilt of the defendant beyond a reasonable doubt.