Roberts v. State

| Wyo. | Dec 9, 1902

Knight, Justice.

The plaintiff in error was convicted of stealing live stock of the value of $25, and on January 2d, 1902, sentenced to three and one-half years in the penitentiary.

The claim of the defendant (plaintiff in error here) was that he had purchased the steer in question from one Zelce Arrington, one of the witnesses for the State, and subsequently placed his own or his wife’s brand on the steer, but denied that at the time he so branded the animal it was already branded with the brand of the owners, as testified to by several witnesses for the State. Of the many errors claimed, the strongest showing made is upon the charge of the court. And we are cited to authorities which clearly show that had the defense in this case been other than purchase the verdict could not stand. We give as containing all the objections the following:

“No. 6. The court further instructs you that the possession of recently stolen property is a circumstance to be considered by the jury. And such circumstance, when taken in connection with other circumstances, such as the branding of the animals, or obliterating the brand upon the same, or of cutting off or removing or obliterating the ear marks thereon, if you find from the evidence, beyond reasonable doubt, that any such facts exist in this case, then I charge you that such possession, together with such other circumstances, are strong criminating circumstances, tending to prove the guilt of the defendant of the theft of such property.”

This instruction is objectionable in having stated that facts as stated are “strong” criminating circumstances tending to prove the guilt of the defendant, and is further objectionable in stating that the possession of recently stolen property is a circumstance to be considered by the jury, leaving out, as it does,^ the statement universally made when such an instruction is given “the unexplained possession,” but while the instruction in the particulars pointed out is erroneous and would in some cases be prejudicial, yet it is not necessarily prejudicial when viewed in connection with the evidence in a particular case. And the remainder of the charge of the court upon the subject, and in this case, when so viewed, we think it is apparent that it could not have prejudiced the'defendant.

No exception was taken to this instruction upon the ground that by statute or otherwise the court was exceeding its authority by attempting to pass upon the weight of evidence, nor for the reason that it was unauthorized for want of evidence, but the first proposition is urged for the first time in the brief of plaintiff in error, and numerous authorities are cited, some of which are based upon direct provisions of statutes or constitutions prohibiting the court from commenting on the weight of evidence, and we must admit that the instruction is objectionable under the authorities cited, and many others found, and that the question of error in this record turns upon these instructions.

In Brooks v. People, 23 Colo., 375" court="Colo." date_filed="1897-01-15" href="https://app.midpage.ai/document/brooke-v-people-6562835?utm_source=webapp" opinion_id="6562835">23 Colo., 375, the court makes use of this language: “They [the jury] must have understood only that, in order to remove the impression produced by the fact of possession as a circumstance tending, in connection with the other evidence in the case, to show guilt, the defendant' must explain such possession. That he might do this, either by conclusively establishing the fact that he honestly and in good faith bought the cattle, or by proof, far short of this, sufficient only to raise a reasonable doubt that he dishonestly obtained possession, was. clearly conveyed to the jurors’ minds. In this case there was no error.”

Let us examine the instructions given by the court in this. case and see if sufficient precautions were taken th^t the jury should not be misled as to the merits of the defense made, which was, as has been saidj that the animal in question had been purchased. Instructions Nos. 8 and 9, given at the request of the defendant, are as follows:

“Nol 8. You are instructed that if you believe from the evidence that the steer in question was sold and delivered to the defendant by one Zeke Arrington, or if you entertain a reasonable doubt of such proposition, then you cannot convict the defendant for the larceny of said steer.

“No. 9. The jury are instructed that the buying or receiving of stolen property, knowing the same is stolen, is a substantive crime, but the person who is charged with having stolen the property cannot be convicted by evidence showing that he received or bought the stolen property. So that in this case, even though you' may believe from the evidence and beyond a reasonable doubt, that the defendant either bought or received the steer in controversy, knowing it to have been stolen, this would not authorize his conviction for the crime of which he stands charged, and your verdict should be, Not guilty.”

In the case of Parrish v. The State, 45 Tex., 51" court="Tex." date_filed="1876-07-01" href="https://app.midpage.ai/document/parrish-v-state-4892704?utm_source=webapp" opinion_id="4892704">45 Tex., 51, the court, under conditions very similar to those hereinbefore pointed out, says: “Still, it is not every error that can be adjudged by this court to be a material error, requiring the reversal of a conviction. This charge not having been excepted to on the trial as being upon the weight of evidence, and not being made a ground of objection in the motion for a new trial further than as embraced in a general objection to the charge, and being accompanied by an explanatory qualification, by which it was not calculated to injure the rights of the defendant, it is not believed to be a material error in this case requiring a reversal of the judgment.”

In the case before us the defense admitted having taken possession of the animal in question and appropriating the same by branding, the only defense being that said animal was purchased of Zeke Arrington, who was present at the trial and gave evidence for the State. The jury were fully advised as to the claimed purchase, and the court not only instructed the jury that if the animal had been purchased by the defendant it was a good defense to this charge, but the court also instructed the jury that if they had a reasonable doubt as to whether or not the defendant purchased the animal, they must acquit him, and, under the circumstances, we do not think the defendant was prejudiced by the erroneous statement of the law regarding the possession of property recently stolen.

We have examined this record maturely in the light of the brief and oral argument of counsel for appellant, and have been unable to find an}'- error of sufficient importance to demand or require of us a reversal of the judgment, and it is, therefore, affirmed. Affirmed.

Potter, C. J., and Corn, J., concur.