118 Wash. 472 | Wash. | 1922
— The defendant was charged with the grand larceny of ten sacks of wheat belonging to R. B. Terrell. The jury found him guilty, and from a judgment on the verdict, an appeal has been taken.
The evidence shows the wheat was stolen. It was raised on a farm belonging to H. W. Hanford, rented on shares by Terrell. It was stolen on the night of August 25, 1920, from the field in which it had been lately threshed, near a public road. The theft was discovered on the morning of August 26. Terrell noticed the tracks of an automobile fropi the highway to the place from which the wheat was taken, thence back into the highway and onto the premises of the appellant. There were distinguishing features of the
There is testimony to show that the wheat was removed from appellant’s barn the night of the 26th of August or the next morning, by whom it is not shown. There is evidence to show that on the morning of August 27, upon appellant’s going to the sheriff’s office, and upon having read to him an arrest warrant which had been sworn out, he admitted the wheat found in his barn was not his, and that he said “I don’t want any publicity. I would like to get this thing settled up.” He first offered to pay for the wheat, and then offered to return it. It appears the latter was agreeable to Terrell at first, but appellant failed to return the wheat at the appointed hour, and thereafter Terrell refused to accept a return of it without the consent of his landlord. Accordingly, Terrell and the appellant went to see Hanford, at which tipie appellant stated he could not afford to let the matter get out, and wanted to pay for the wheat and for Terrell’s time. Upon fixing upon the amount and while considering the situation, Hanford telephoned the sheriff’s office
The first assignments of error relate to the court’s permitting the witness Hanford to testify, over appellant’s objections, and then refusing to strike the testimony after it was given, to the effect that he told appellant he (Hanford) had nothing to fix up, that he was not selling wheat, that he had been robbed three times out there, and that he wanted this one run down. The claim is that the testimony was irrelevant and prejudicial, and so remotely removed from the scene and time of the theft as not to be a part of the res gestae. Clearly, it was not offered as a part of the res gestae. The witness was called to prove that appellant had voluntarily gone to him and offered to pay for the wheat. His conduct and offer were in the nature of an admission, and the language objected to was but the answer to the offer appellant was making and was spoken at the very time and occasion of the offer being made, and was therefore admissible.
Assignment number 3, that the court erred in denying appellant’s motion for a directed verdict at the close of the evidence for the state, is not supported by any argument and is, we think, without merit.
It is contended the court erroneously gave the following instruction :
“I instruct you that where a person is accused of larceny, proof of recent possession of the property alleged to have been stolen is not of itself sufficient to justify a conviction of larceny. Therefore, if you find beyond a reasonable doubt that the wheat alleged to have been stolen by the defendant in this case was in his possession at or about the time it is alleged to have been stolen, and you further find that such wheat was*477 stolen property, still the defendant’s possession thereof, if you so find, is not alone sufficient to warrant you in finding him guilty, but is.a circumstance which may be taken in connection with all the other facts and circumstances in the case in arriving at your verdict.”
We think the instruction was correct under the testimony in this case. It is in harmony with the rule laid down in State v. Walters, 7 Wash. 246, 34 Pac. 938, 1098. The principal criticism of it is that the state must go further than show the wheat was found in a barn upon appellant’s premises, accessible to others, and show that the possession was personal, not simply constructive, and that it involved a distinct and conscious assertion of possession by the accused. There is much in the argument, “but the sense of the term ‘possession’ in this connection is not necessarily limited to custody about the person. It may be of things elsewhere deposited but under the control of a person.” 17 P. C. L. (Larceny) § 77, p. 73. It is a question of - fact, which was carefully recognized by the court in its instructions by saying, among other things, “therefore if you find beyond a reasonable doubt that the wheat alleged to have been stolen by the defendant in this case was in his possession, etc.”
The court was not in error in refusing appellant’s requested instruction to the effect that, if they were satisfied from the evidence the defendant offered to pay the prosecuting witness for the wheat, without admitting the larceny thereof, for the purpose of avoiding publicity, that circumstance should not be regarded as any evidence of guilt. The effect and value of the testimony was for the jury.
Next it is claimed the court committed error in refusing a requested instruction to the effect that evidence of good character may of itself be sufficient to
“The court was also requested to charge the jury that good character is admissible not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt. This instruction was refused and, as we think, rightly. It may be true as an abstract proposition of law, as stated in People v. Jassino, 100 Mich. 536 (59 N. W. 230), cited by counsel, that evidence of good character may be offered for the purpose of creating a doubt, but, in our judgment, where evidence of good character has been admitted by the court and the jury charged to consider it with the other evidence in arriving at their verdict, it is not necessary for the court to further state to the jury the purpose for which such evidence may be admitted. The statute requires the court simply to instruct the jury as to the law in the case, and, when the court has done that, it is not incumbent upon it to enlighten the jury upon abstract legal propositions.”
In the present case, the jury was instructed according to the rule in that case.
It is assigned as error that the motion for a new trial should have been granted because the evidence was not sufficient to support a conviction. Manifestly there was quite enough evidence, the jury believing it, to warrant the conclusion reached.
Lastly, it is urged a new trial should have been granted on account of newly discovered evidence of an alibi. The new evidence suggested was cumulative, and upon a consideration of it, as well as that given upon the subject at the trial, it must be concluded that the trial judge did not abuse a sound discretion in denying the motion for a new trial. State v. Wilcox,
Affirmed.
Parker, C. J., Tolman, and Bridges, JJ., concur.