33 Wash. 293 | Wash. | 1903
Appellant was charged with stealing, taking, and driving away, one gray gelding of the value of $60, the property of one Charles Johnson. The jury returned a verdict of guilty as charged. A motion for a
It is assigned as error that the court overruled a motion for nonsuit—in effect a motion for acquittal of appellant— at the close of respondent’s case. It is urged in support of this assignment that the evidence had not shown the possession of the animal to have been recent, and that even recent possession, standing alone, is not sufficient to support a conviction for larceny. It is also asserted that the animal was not a range animal. The evidence for the state had shown, that the animal had been running iit large upon land but partially inclosed, through the middle of which ran the county road; that the character of the country was the same as any other open country, and animals come and go at their will. "We think there was sufficient evidence for the jury that the animal came within the classification of range animals. Perhaps appellant’s assertion that recent possession of itself is not sufficient to warrant a conviction is true, but it is at least a circumstance to be considered by the jury along with other circumstances in evidence. Other circumstances had appeared in the evidence of the state, and the possesssion shown by the testimony was sufficiently recent for the jury to consider it with all other evidence. In State v. Hyde, 22 Wash. 551, 564, 61 Pac. 719, this court said of a similar motion:
“This motion is a general one, and only challenges the general sufficiency of the evidence; that is, say, in effect, there is a total failure of evidence. Upon a motion of this kind, the only question raised is whether there is any evidence tending to prove the crime charged, not whether the evidence fails in some particular matters.”
Error is urged upon the following instruction given by the court:
“If you find from the evidence that Charles Johnson was the owner of the gelding described in the information, and that said gelding was permitted to run on the range, proof of the further fact that said gelding was shortly thereafter in the possession of the defendant is sufficient to put upon defendant the burden of explaining such possession. The presumption, if any, arising from such fact of possession of range stock, if you find suchffact from the evidence, is one of fact only and is rebuttable, and such presumption is overcome whenever a reasonable explanation is made or arises from the evidence; that is, an explanation which you deem reasonable, considering all the facts and circumstances of the case, is given, and is not shown to be untrue.”
It is first asserted that there was no evidence that the gelding was found in the possession of appellant shortly after the animal was permitted to run on the range. There certainly was evidence to the effect that appellant was in possession after the gelding was permitted to run on the range. Whether that possession was shortly afterwards was for the jury to determine. The term used by the court is indefinite as to time, and signifies practically the sanie idea as the common expression “recent possession.” The testimony was to the effect that the possession was at least within a few months after the animal was permitted to run upon the range, and we see no prejudicial error in the instruction on the ground urged as above stated.
A feature of the above instruction not discussed by counsel we think should be mentioned here, in order that no apparent confusion may exist between this case and other decisions of this court in larceny cases. By the instruction in this case the burden of explaining possession is placed upon the defendant. The instruction upon its face apparently conflicts with the rule announced by this court in State v. Walters, 7 Wash. 246, 34 Pac. 938, 1098. An instruction in that case contained the following:
. “In this case if the jury believe from the evidence beyond a reasonable doubt that the property described in the*298 information was stolen, and that the defendant was found in possession of the property, soon after it was stolen, then said possession is in law a criminating circumstance tending to show the guilt of the defendant unless the evidence and the facts and circumstances proved show that he may have come honestly in possession of it.”
The instruction was held to he erroneous on the theory that possession of recently stolen property is only a circumstance to be considered by the jury in connection with all other evidence in a given case. In State v. Bliss, 27 Wash. 463, 68 Pac. 87, the respondent’s counsel urged this court to overrule State v. Walters, supra, in the above mentioned particular, but we declined to do so, and approved the holding in the former case as the established doctrine of this court. , The instruction in the case at bar was, however, given under the authority of § 7114, Bal. Code, which is as follows:
“In all prosecutions for larceny under the last preceding section, where the animal alleged to have been stolen was permitted by its owner to run on the range, proof of possession of the animal by the person accused of stealing the same shall be prima facie evidence that the accused acquired possession thereof recently, and shall have the effect of throwing on the accused person the burden of explaining such possession.”
The previous section, referred to in the above quoted one, relates to the larceny of animals, and it will be seen that the quoted section expressly provides that, when the animal alleged to have been stolen was permitted by its owner “to run on the range,” proof of possession by the accused shall be prima facie evidence that it was acquired recently, and shall throw the burden of explaining it upon the accused. The statute therefore declares an exception to the general rule adopted by this court in ordinary lar
The statute was passed in 1895, and State v. Walters was decided prior to this statute. That ease involved the larceny of a horse, but the opinion does not disclose whether it was a range animal or not. State v. Bliss, supra, however, involved another class of property, and we have made the above observations in order to make it clear that, while we adhere to the general rule reanhounced in that case, we at the same time recognize the exception made by the statute cited. We have already said, in State v. Bliss, that the general rule adopted is supported by eminent authority, and we now see no reason for changing it, unless it shall be done by the legislature as in tbe case of the exception herein discussed. The instruction in the case at bar came within the exception, and is therefore not erx’oneous.
It is assigned that the court erred in refusing to reopen the ease and allow appellant to make proof of ,the handwriting of a certain letter which had already been admitted in evidence. Appellant recognizes that the reopening of the case was largely a discretionary matter with the court, but bases this claim of ex*ror chiefly upon the remark of the court made at the time. It was appellant’s contention that the letter gave him authority to take possession of the animal, or that he at least believed it did. It was therefore admitted in evidence by the court as bearing upon the question of intention, and was so expressly stated by the court when it was admitted. When afterwards the application was made to reopen the case, appellant’s counsel stated that he wished to prove the handwriting of the letter', and the court remarked as follows: “The motion will be overruled because in the opinion of the court it is
It is urged that the court erred in refusing the following instruction :
“Where the alleged owner of goods or property alleged to have been stolen would not swear positively to the property being his, it is your duty to acquit, as this is not sufficient proof of ownership.”
We think the testimony as to ownership was sufficiently positive to have made the giving of the above instruction erroneous. The prosecuting witness testified in chief that the horse was his, and what he may have said upon cross-examination was matter for argument to the jury, but was not properly the basis of such an instruction as was requested.
The court gave the following instruction:
“You are instructed that if this defendant took this horse under a claim of right, and you find a fair pretense for so taking said horse, it is your duty to acquit this de*301 fendant, though you should find he was mistaken in his claim to said horse.”
It is urged that the above instruction was a virtual admission that appellant had introduced that class of testimony which, when done, the law says shall not be submitted to a jury, and that if there was sufficient testimony to warrant the instruction, there was sufficient to warrant the court in taking the responsibility upon himself which he inadvertently gave to the jury. It cannot be the law that, whenever the defense to a prosecution for larceny is a taking of possession under claim of right, the cause shall not be submitted to a jury in a criminal case. It is possible for the proofs to be such as would justify the court in saying that no criminal intent is involved, and that the parties should be referred to a civil action for the settlement of a mere legal controversy. But we apprehend such proofs must be so convincing as will practically preclude, in the mind of a reasonable man, the possibility of a criminal intent. • We do not think the proofs here presented such a ease. The court, by its instructions, gave the appellant the benefit of this defense, leaving the jury to say whether he had “a fair pretense for so taking said horse.” Under the evidence in this case, we think the court did not err.
Bor the foregoing reasons, we find no reversible error, and the judgment is affirmed.
Buxxerton, O. J., and Mount, Dunbar, and Anders, JJ., concur.