100 P. 462 | Ariz. | 1909
The appellant in this case was convicted of burglary at the April term, 1908, of the district court of Maricopa county, and, from the judgment of conviction and the denial of the motion for a new trial, he appeals to this court, and assigns as error:
“(1) The court erred in giving the following instruction to the jury: ‘But if from the evidence you believe beyond a reasonable doubt that these goods were taken to this man’s place in connection with the attempted burglary, they being found there in his possession, this is a corroboration of the testimony of Arviso, which you would have a right to take into account.’
“ (2) The verdict is contrary to the evidence.”
We will first consider the second assignment. An examination of the record discloses that one Alberto Arviso was also indicted for the same burglary, and pleaded guilty, and, on the trial of the defendant (Quong Yu), Arviso testified at length in regard to the circumstances of the occurrence. The gist of the testimony was that on the night in question (December 14, 1907) he procured a one-horse wagon, and about 8 or 9 o’clock he drove to the defendant’s store; he and the defendant got on the wagon, and went to a store known as the “New York Store”; that he entered the store, went upstairs, dropped the goods down with a rope, put them on a table in the back yard, opened the corral gate, when the defendant entered in said yard and helped him put the goods into the wagon, after which he closed the door, went out through the front of the store, and met the defendant on the corner of the alley, when they drove together to the defendant’s store, when the defendant paid him some money and he went away.
H. A. Moore, the city marshal, testified that on that occasion they found the goods, some on the shelves and some in a little storeroom, partly a storeroom and partly a bedroom, and a good many of the goods were concealed underneath the bed.
Leo Troutman, the officer who accompanied Korrick and the city marshal, testified that they found part of the goods in defendant’s bedroom, and a few of them on the shelves, part under the bed, and part in the bed; they were covered up with some comforts on the bed; most of them were under the bed.
The testimony above referred to disposes of the second assignment of error. It is too well established to be seriously questioned that an appellate court will not interfere with the verdict of a jury based upon conflicting testimony, when there is any substantial evidence to support it. The question addressed to an appellate court on this assignment is not whether, if the court was sitting as a jury, they would render the same verdict as that found by the twelve men who tried the case under their oaths as jurors, but whether, on the one hand, there is any competent evidence to support the verdict found by the jury, or whether, on the other hand, the verdict was found without evidence, from passion, prejudice, or other improper motive or reason. The circumstances under which the goods were found in the possession of the defendant, corroborated by the testimony of the witness Arviso, would be held sufficient to support a verdict returned by twelve competent jurors, who, after hearing all the evidence in the case, including the defendant’s explanation of his possession of the property and denial of his participation in the burglary,
The first assignment is based upon the instruction of the court. In considering the instruction herein submitted, we must take it in connection with the other instructions which constitute the charge of the court. It is not proper to single out one expression, or statement or part of a paragraph and consider it entirely apart from the context. Quoting from the charge of the court on this feature of the case a little more fully than did the appellant, we find the court said: “Before you can find Quong Yu guilty on the testimony of the man who was engaged with him in this work — that is, Arviso — the testimony of Arviso must be corroborated by other evidence, which, in itself, and without the aid of the testimony of Arviso, tends to connect the Chinaman with the commission of the offense. . . . Now, if you should believe from the evidence in this ease, or if you should have a reasonable doubt on the matter, that these goods were got by this Chinaman in some other way than by his being present there at the time of the burglary, you ought not to find a verdict of guilty in this case. . . . But you have a right to take into account the testimony with respect to these goods, and if that testimony, in your minds, corroborates the testimony of Arviso that the defendant was there, then you would have a right to convict him on the testimony of the two; that is, the testimony of Arviso and the fact of these goods being there; but you would not have a right to convict him on the testimony of Arviso alone, and would not have a right to convict him if you had a reasonable doubt as to how he came into possession of these goods — if you have a reasonable doubt that the claim of the prosecution as to how he came into possession of the goods was correct; but if from the evidence you believe, beyond a reasonable doubt, that these goods were taken to this man’s place in connection with the attempted burglary, they being found there in his possession, that is corroboration of the testimony of Arviso which you would have a right to take into account.”
The counsel for the appellant urged that, “to justify a conviction on the evidence of an accomplice, the evidence of corroboration must of itself and standing alone, and independent of the testimony of the accomplice, tend to connect
It is urged that the bare possession of stolen goods does not necessarily connect the defendant with,the burglary. That is true, and that' instruction is ordinarily given in burglary cases. It is likewise true that a further correct legal proposition is that the possession by the defendant of goods recently stolen on the occasion of a burglary is a circumstance to be taken into consideration by the jury in determining the guilt or innocence of the defendant, and, unless satisfactorily explained, it tends to prove the guilt of the defendant.
Counsel for the .appellant urges that the court should not have alluded to or pointed out in his instructions possession of stolen goods as a corroboration of the testimony of the accomplice Arviso, and claim that this was fatal error, because it was a charge upon the weight of the evidence. We cannot concede that as a proper construction of the language quoted. The objectionable clause, if carefully examined, will be found to be not an instruction upon the weight of the evidence, but an instruction to the effect that this constitutes evidence that is a corroboration of the testimony of Arviso, which the jury have a right to take into account, and to give it the weight to which they may think it entitled. The same condition of affairs often arises in the trial of criminal cases in a different manner. Under the rule above stated, it is a right on the part of the defendant that is frequently exercised to object to the testimony of an accomplice until there has been other evidence introduced tending to establish the guilt of the defendant. Upon such objection it is incumbent upon the court either to exclu.de the testimony of the accomplice, or to admit it upon the ruling that certain evidence theretofore introduced is sufficient to authorize the testimony of the accomplice, or upon the avowal of the prosecution that it will later introduce such independent evidence to render the testimony of the accom-
These are the only errors assigned and a further examination of the record discloses none.
The judgment of the lower court is therefore affirmed.