State v. Hill

128 P. 444 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1. Under the recent amendment to our constitution (Article VII, Section 3), if there is any evidence to support the verdict, this court cannot disturb it. The jury are the exclusive judges of all questions of fact. Section 139, L. O. L.

2. Upon the case made by the State we are of the opinion that there was evidence tending to indicate defendant’s guilt sufficient to go to the jury. The possession of property recently stolen is a fact from which the jury may infer that the possessor was concerned in the theft. Wharton, Criminal Evidence (10 ed.) § 758. Mr. Wharton says:

“Taking up, then, the point immediately before us, we may say that a court may properly tell the jury that the possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred. But the possession must be personal, must be recent, must be unexplained, and must involve a distinct assertion of property by the defendant. If the explanation involves a falsely disputed identity or other fabricated evidence, the inference increases in strength; and so where the goods are part of a mass of stolen property, and where the case is that of a forged instrument held by one claiming under it. But in any view the question is one of fact.”

Here the possession was recent and personal. It was unexplained — in fact, the evidence for the State indicates that defendant denied the possession, and falsely stated that, if the mares were upon his place, he did not know it. These facts were sufficient to authorize the jury to infer that he was a fellow conspirator in the theft, that he might have been a receiver only of property previously stolen by another was a matter for the jury; they being “the judges of the value and effect of the evidence.”

3. The letter offered, in evidence was properly excluded. We do not question the position of counsel that in certain cases declarations indicating plan and purpose, made so long before an act is done as to preclude the probability that they were fabricated for the purpose of deception, may be a part of the res gestae, and, as such, admissible, U. S. v. Craig, 4 Wash. C. C. 729 (Fed. Cas. No. 14,883) ; Trial of Spencer Cowper, 13 Howell’s State Trials, 1106; Garber v. State, 4 Cold. (Tenn.) 161; The Queen v. Chasson, 16 New Brunswick, 546; Grimes v. State, 68 Ind. 193. But this letter did not characterize the act or purpose of defendant in taking the mares. It indicated that at some time in the future, when the grass improved, he would take the cattle that were on the Hill ranch to the mountains to pasture, which he did on the 11th of June. Nobody intimates that such intent was criminal, or that his act of driving the cattle was criminal, or that there was anything wrong or unusual in his coming to the Hill ranch for that purpose. The letter throws no light upon his intent in taking possession of the horses, or in taking them to his ranch, or in making the alleged claim of part ownership to the witness McKean. Testimony of this character is so often self-serving that courts are loth to admit it in any case.

4. The defendant’s counsel requested the court to give the following instruction:

“Before you can convict this defendant, you must believe beyond a reasonable doubt that he is guilty of, or in complicity with, the original taking, and any subsequent connection after the taking would not be larceny in him, whether in good or bad faith; and if you believe that this defendant received the horses in question from Walter Hill, or any other party, after the felonious taking, whether in good or in bad faith, he is not guilty of larceny, and you must acquit him.”

The court refused the instruction, and gave the following :

“Before you can convict this defendant, you must believe beyond a reasonable doubt that he is guilty of, or in complicity with, the original unlawful taking, and any subsequent connection after the taking would not be larceny in him, and, if you believe that this defendant received the horses in question from Walter Hill, or any other party, after the felonious taking, and he himself did not assist and abet in such felonious taking, he is not guilty of larceny, and you must acquit him.”

There was room for argument as to whether the defendant had taken the horses in pursuance of a conspiracy with his brother, or had subsequently received them from him with a view of concealing his brother’s theft, or whether he had received them innocently, supposing Walter had purchased them for the partnership. If he received them innocently, supposing that his brother had purchased them, this, of course, would acquit him, or, if after the original larceny was complete he for the first time became a party in the transaction, having no connection as a conspirator in the original theft; but, being informed of it before he received them, he would be guilty of the crime of receiving stolen property, but not of larceny. The instruction asked made this distinction clear. The instruction given did not so clearly point it out. Testimony had been given that these men were partners and had been so from boyhood, that their property was acquired and held in common, and the jury might be inclined to the idea that under these close relations the theft of one of the partners would be the theft of both. To a lawyer the instruction asked and the one given would convey the same idea. To a layman they might or might not. It was error under the circumstances and evidence in this case to refuse the instruction.

5. The defendant’s counsel asked the following instruction:

“You are instructed that if you believe from the evidence of the case beyond a reasonable doubt that the mares mentioned in the indictment or either of them were stolen from W. C. Todd and C. A. Todd, who were partners and that they were the owners thereof, and that shortly after the theft the same were found in the possession of this defendant, Albert Hill, I charge you that no legal presumption of his guilt arises therefrom.”

This instruction, while it states the law correctly, was likely to be misleading to .the jury. It is true that the recent possession of stolen property does not raise a legal presumption that defendant is guilty of larceny. It is simply a circumstance from which the jury may or may not as a matter of fact infer guilt; but it would require a long explanation to draw the distinction between a presumption of law and an inference of fact, and the instruction should not have been given in the form presented. The weight to be given to the circumstance adverted to is fully explained in instruction No. 7, which correctly and clearly states the law.

For the reason that the court failed to give the instruction in regard to the good or bad faith of the defendant in taking possession of the property, the judgment is reversed, and a new trial ordered. Reversed.