State v. Owens

619 P.2d 787 Idaho, Plaintiff-Respondent,

STATE of OWENS, Defendant-Appellant.

Dianne E.

No. 12272.

Supreme Court of Idaho.

Oct. 1979. Rehearing

On Nov. 1980. Gen., Lynn E. Leroy, Atty. H.

David Carsman, Deputy At- Thomas, W. Howard Gen., Atty. Asst. Gen., Berry, Arthur J. tys. Boise, plaintiff-respondent. BAKES, Justice. ran a Dianne Owens appellant

Defendant Upper 1975 in the ranch in 1974 and cattle Coun- Ford Road area Clearwater Creek Orofino, In 1974 Mike and near Idaho. ty,. grazing leased 160acres of Jeannine Martin Road about 0.8 Upper land on Ford Creek October, ranch. In late miles below Owens’ brought Martins their animals out pasture Upper from their Ford Creek discovered that a white pasturage and faced, horned, brindle colored heifer cow missing lightly applied with their brand was from the herd. was subsequently Owens charged con- with theft of the heifer and brings ap- victed at a trial. She peal from the for judgment conviction following the trial. grand larceny entered We affirm.

Defendant Owens raises numerous issues appeal. primary Her contention is that the state’s evidence insufficient delicti, e., prove corpus i. that the crime charged grand larceny actually occurred. — — argues that as a result of the state’s She introduce evidence sufficient to failure to support finding question that the heifer in subject taking it was was the of a larcenous (1) deny court error for the trial made at the close of acquittal motion for chief, (2) to instruct the state’s case . unexplained possession jury that an by recently theft was jury to infer that the permits the defendant. committed guilty placed plea defendant’s of not allegation made in every in issue material 19-1715; v. indictment. I.C. State § (1971). Cutler, 94 Idaho 486 P.2d placed in allegations of the material One is that of the plea guilty of not issue Cutler, v. the crime. corpus delicti of State elements larceny charge, the supra. In a taking, Lofland, Lewiston, proven include Rapaich, Gary Eli E. which must be without leading away, Boise, driving or defendant-appellant. carrying, another, early permission, of Owens in late 1974 or personal property of from defendant he had with the intent to work permanently deprive exchange 1975 in for some 18-4601; of sale from owner thereof. defendant. A bill I.C. State v. done for the § sale of Jesser, representing (1972). 95 Idaho to Hueth P.2d the defendant into Hueth was admitted Direct circumstantial evidence which sat- the animal animal beyond isfies the factfinder a reasonable Hueth testified evidence. and that he received it charged doubt that the crime has been com- was with calf when when it the calf corpus agreed give mitted establishes the delicti. he Owens Johnson, Investigation 96 Idaho 536 P.2d 295 was revealed born. Kombol, (1975); bore 347 animal Hueth received Owens registered to the Mar- lightly applied P.2d 117 brand photographs of tins. The Martins identified presented by evidence the state its being Hueth as their the animal Owens sold tending prove case in chief missing. they reported animal had larcenously heifer was taken Owens Martin, as follows. Mike and Jeannine There was substantial evidence owners, they put animal’s testified that in its case in chief presented by the state pasture Up- heifer out to summer on their which, jury, sup if would believed per Ford Creek Road land the first week in port finding the Martin heifer was May subsequent repairing of 1974 to their without the taken the defendant Owens fences, pasture’s required by their permission Martins’ and with an intent agreement. lease Mike Martin testified posses Martins of permanently deprive the that the last time he saw the animal was in Idaho, sion of it. theft of a cow consti October, 1974, the second week of when he grand 18-4604(3); tutes larceny. I.C. § pasture visited the to check his herd. When 317, Harrington, State v. 92 Idaho 442 P.2d the Martins removed their animals from (1968). The trial court’s denial of de pasture in the last week of October they fendant’s motion for judgment acquittal were unable to find the heifer. The Mar- made at the close of the in chief state’s case tins testified that they checked their fences was not error. at that time and good found them to be in Likewise, argument Owens’ condition. They stated that they searched the trial court in instructing erred their pasture and neighboring lands and unexplained that the defendant’s made inquiry area, of ranchers in the but recently stolen property may raise an were unable to locate the animal. The ani- inference that the defendant committed the mal was reported as lost to local law en- larceny is without merit. Once the state agencies forcement in early November. support submitted evidence which Jones, Brady year a 16 youth old who stolen, finding that the heifer was it was occasionally Owens, worked for defendant not error for the trial to give court testified for the state in its case in chief Ponthier, instruction. v. State 92 Idaho working while for defendant Owens 704, (1969); 449 P.2d 364 Haggard, State v. she and one Rick Pederson told Jones that (1965); 89 Idaho P.2d 580 see they had discovered a alongside cow Ford Sullivan, (1921). v. 34 Idaho 199 P. 647 Creek Road and had loaded it onto Owens’ participation The defendant’s in a theft pickup truck. Jones further testified that may be inferred from the defendant’s unex the defendant Owens and Rick Pederson plained possession recently proper stolen had taken the cow to the ranch of one Trice, (9th ty. United v. 476 F.2d 89 States David in Weippe, Hueth Idaho. Jones testi- Martin, 1973); Cir. United States v. fied that he was told the animal was preg- (9th 1972), F.2d 1009 cert. denied 409 Cir. nant and that Owens towas receive the calf (1972). 34 L.Ed.2d 111 from Hueth when it was born. States, Cf. Barnes v. United 412 U.S.

David Hueth testified for the state on (1973) (where 37 L.Ed.2d 380 direct examination that he received the cow evidence established defendant possessed

charged receiving property pos stolen that the defendant a heifer be- Martin, recently Treasury pay sessed stolen checks but longing to Mike and Jeannine able to not know and there persons he did prove participated did not that Owens plausible explanation pos no for such charged. the theft as innocence, session consistent with tradition hearing the preliminary At arising pos al common law inferences prove the accused’s required state is not recently goods session of satisfied doubt; only it need guilt beyond reasonable reasonable doubt standard and comported and that prove that a crime was committed process). with due ac probable there is cause to believe the assigns Defendant Owens also as error State, cused committed it. O’Neill rulings magistrate several made in (1969); I.C. Idaho 452 P.2d 989 binding Owens over to district court for 19-804 -815. The decision of a §§ trial. argues magistrate She that the erred magistrate probable cause that there exists in failing complaint to dismiss the criminal to bind a over to district court argues filed her. She that the com- charges should be over for trial on the plaint adequately failed to describe the ani- showing turned commit horned, (“one brindle, question mal in heifer ting magistrate abused his discretion. cow, being of Jeannine Mar- O’Mealey, 95 Idaho 506 P.2d 99 tin”) and to properly specify the time that State, 706, 429 (1973); Carey v. (“between the larceny occurred the middle P.2d 836 October, 1974, February, and the end of 1975”). presented We find the evidence hearing preliminary by the state at legally complaint A sufficient that the supports magistrate’s decision need statement simple be a and concise subject of a theft and was the heifer Martin constituting the of essential facts probable to believe there was cause charged. fense I.C.R. 3. I.C. 19-3901 § that crime. The that defendant committed provides complaint that the criminal must reported lost state showed that the heifer time, place, per specify particulars “such as that by the Martins was the same animal son and as to enable defendant from defendant by received David Hueth the character of distinctly understand exchange for labor on the Owens Owens of, complained the offense and to answer ranch. Wade Ralston of the Clearwater However, it not neces complaint.” that in the County sheriff’s testified office or sary complaint that the contain a formal course of his of the loss of the investigation charged. detailed of the offense description heifer, that defendant Martin’s he learned required general descrip that is is a “[A]ll sold it to tion Owens had taken the animal designation of the offense so that of the ani Hueth. Ralston’s examination opportu a fair the animal know, revealed that nity to mal sold to Hueth by proffered preliminary ex Hueth testified amination, brand. general character bore the Martins’ and out the animal purchased line that he had of the offense for which he is to have of sale for McKeehan, produced an a bill examination.” 91 Owens and magis The 808, 818, (1967); by Idaho animal made out Owens. P.2d Woodward, explanation State v. trate was free to disbelieve Idaho 238 P. 525 (1925); 453, presented in her defense McGreevey, State v. 17 Idaho Owens testimony (1909). accept 105 P. 1047 the state’s witnesses’ complaint filed the heifer against supports finding Owens satisfies a that standard. proba had been stolen and that there argues Owens also the state’s evi- that the defendant Ow ble cause to believe dence presented preliminary hearing at the ens had stolen it. did not probable demonstrate cause larceny had been information argued committed. It is maintains that Owens the state’s matter merely evidence showed filed in the district court in this subsequent preliminary offense, to the hearing and and the nature of the charged theft the magistrate’s decision to bind the de- of ambulatory an stock animal from sum- fendant over for trial should have been pasture, mer is such that the exact date of a upon dismissed her motion. asserts She taking likely larcenous not be discov- that the information properly failed to de- ered by investigat- the animal’s owners or scribe the heifer allegedly stolen and the ing authorities absent confession alleged larceny. date of the The informa- guilty party. against The information filed tion filed in the district court reiterates the re- adequate Owens in this case was with allegations set out above which were spect charged to the time the crime presented magistrate in the com- alleged occurred. plaint preliminary hearing. at the physical description information, A legally sufficient like a alleged heifer to have been stolen Owens criminal complaint, plain, is a concise and is also satisfactory purposes of the in definite written statement of the essential (cid:127) formation in this purpose filed case. The facts constituting the offense charged. the requirement that an information inform 7(b). I.C.R. A legally sufficient informa- the defendant of the charges nature of the tion or indictment must contain state- “[a] against him is to enable the accused to ment of the acts constituting the offense in prepare proper defense to the charge and ordinary and concise language, and in such protect against subsequent himself manner as to person enable a of common prosecution based on commission of the understanding to know what is intended.” McKeehan, same acts. State v. supra; I.C. Mol 19-1409(2); § I.C. 19-1411 and §§ -1418; State, Winn, lendorf v. In re 67 Idaho 173 P.2d 519 154 P. 497 (1946). The information filed de fendant adequately Owens district court With respect to defendant’s claim that sets out the nature and circumstances of the time of the alleged offense was not charged offense and a sufficient de stated in the information adequate scription alleged animal to have been specificity, I.C. provides 19-1414 § that: taken to person ordinary enable a under “The precise time at which the offense standing adequately to know the details of was committed need not be stated in the the crime the charged state and intended to indictment; alleged but it be to have prove at trial. been committed at any time before the thereof, finding except where the time is Owens asserts that the state denied ingredient material in the offense.” her constitutional and statutory right to a An information need not contain preliminary hearing by filing an amended precise time at which a crime is alleged prior information subsequent to trial but to have been committed where time is not a the preliminary hearing filing of the material element of the charged. crime original argues information. She it Oldham, 124, v. State 92 Idaho 438 P.2d 275 was error for deny the district court to (1968); Larsen, 528, State v. 76 Idaho preliminary hearing on the amended in (1955); P.2d 646 Rogers, State v. 48 Idaho formation. The amended information add 567, (1929); 283 P. 44 I.C. 19-1414. § See ed one witness to in the those listed initial generally Am.Jur.2d, Indictments and supplemented information and the descrip Informations, (1968). 115-17 §§ tion of the heifer defendant was charged period taking by referring

The time which the state to its brand. The alleged that Owens criminal charge, parties, proper stole the heifer is in and the this case four long. ty question 7(d) and one half months were not altered. I.C.R. information alleged that the offense oc authorizes amendment of an information at curred before the running any of the statute of time “if no before verdict additional or limitations; the time of the offense is charged not a different offense is and if substan material larceny element of the charge; rights tial of the defendant are preju- not 16(a)

diced.” In showing preju- governs generally absence of a I.C.R. the dis- arising amendments, dice covery rights defend- of a criminal defendant 16(a)(1) certain argument ant’s Idaho. I.C.R. enumerates wholly without merit. which a defendant types of information to Owens next asserts that the trial court’s provides: then 16(a)(2)(ii) is entitled. I.C.R. failure grant two her pretrial motions subsection, “Except as authorized for production disclosure and of statements discovery this rule does not authorize by made the state’s witnesses denied her prosecution by statements made rights to due process and constituted re- wit- prospective prosecution or witnesses versible error. argues Owens that she was attor- agents prosecuting nesses to of the unaware until trial of the substance of the in the ney any or to official involved testimony of Brady Jones and of one Mar- investigatory process of the case.” garet that, result, Hepburn and as a she argue, Defendant does nor does Owens not was unable to properly prepare for the trial. us, appear pretrial it disclosure The district granted pretrial court two any statements made the state’s witness- discovery motions filed the defendant. es Jones and Hepburn required by 9, 1975, court on granted December I.C.R. 16. defendant’s “Motion for Discovery and In- The state also has a constitu spection 16(a)” Pursuant to I.C.R. and her duty tional to disclose to a criminal defend “Motion 12(d)(2).” Pursuant to I.C.R. upon request any ant exculpatory evidence These two motions required prosecutor or favorable a defendant which to make a disclosure of the evidence to preparation material to of a defense. Unit which the defendant was entitled under 97, ed Agurs, States v. U.S. I.C.R. 16. No contention is made by the (1976); 49 L.Ed.2d 342 Moore v. Illi the state failed to properly nois, 33 L.Ed.2d U.S. S.Ct. comply with these two discovery orders. (1972); Maryland, Brady v. (1963); 10 L.Ed.2d 215 Owens made two discovery other motions Brown, (1977); 98 Idaho 560 P.2d 880 which were granted by the trial court. Harwood, State v. 495 P.2d 18, 1975, On November she filed a “Motion suppression “The . sought Disclosure” in which she to learn exculpatory prosecutor evidence by a “if any [is] state’s witnesses have Harwood, process.” denial of due testimony contradictory materially dif- 94 Idaho at 495 P.2d at 162. The ferent from that contained in oral or right of evidence defendant’s to disclosure written statements made said witnesses state, however, extends and known prosecution without re- exculpate tending to evidence the de gard to made, whom said statements were holding fendant. “The heart of the in Bra whether said statements are contained in dy, prosecution’s suppression is the of evi prosecution’s the police or files or not.” On dence, production in the face of a defense 21, 1975, November the defendant filed an is favorable to request, where the evidence “Amended Motion for Production of State- material either to accused and is ments” in which she moved for “an order Illinois, punishment.” Moore v. 408 U.S. directing prosecuting attorney to deliv- at at 33 L.Ed.2d at 713. er as soon as reasonably practicable to coun- sel for the copies of all material argument Defendant Owens’ (written and relevant statements or other- pro that the motions for disclosure and recorded) pertaining wise to the testimony were “abso duction of witness statements to be herein witnesses to by be called lutely her defense. does essential” to She prosecution trial.” Neither of prosecution not assert that failed to granted by these two motions were the trial might disclose which was or evidence court, argues and Owens that denial of the exculpatory to her. The record indicates motions constituted reversible error. testimony of witnesses Jones and Hepburn was completely inconsistent ful having acts no connection with the mat the defendant’s claim that she was innocent Dayley, ter on trial. v. 96 Idaho State of the charge for which she (1975); was tried. Fur- Muguerza, 531 P.2d 1172 ther, our examination of (1928); the record shows 43(b)(6); Idaho 268 P. 1 I.R.C.P. district court on November (repealed 1975). see also I.C. 9-1209 § 1975,granted Hence, defendant’s motion for a con- improper prosecution it was for the tinuance of the trial. Defendant stated at inquire to of witness Pederson about the hearing upon held her motion for wrongful may participated conduct he have continuance her request was felony made be- that did not culminate in a convic cause she believed Margaret impeachment purposes. tion admissible for Hepburn testify differently at the district court denied defendant’s mo trial than she did following prosecutor’s at the tion for mistrial preliminary hearing. Hep- alleged improper questioning burn had testified of witness on defendant’s behalf at the preliminary Pederson. The court ruled that because the hearing, but testified on the question, any witness did not answer the against state’s behalf Owens at trial. De- prejudicial resulting from inferences fendant’s motion for the continuance was asking question made six could be cured weeks before the trial was actual- ly instructing disregard ques held. The record indicates that she was tion and to avoid speculating aware at the how the wit time she made her motion for may ness have answered if allowed to do so. Hepburn’s continuance of intent change her testimony. Owens can hardly The trial court is in the best claim that she surprised was prejudiced position judge prejudicial effect when the state Hepburn called as its wit- caused by improper an but unanswered Further, ness at trial. the substance of question. prior Our cases have held that it Brady Jones’ trial testimony presented presumed must be that a jury obeyed the at the preliminary hearing through the tes- disregard trial court’s instructions an im timony Ralston, of Wade deputy sheriff of proper question speculation and to avoid County. Clearwater perceive We do not might to what the witness have answered if how Owens prejudiced by the fact that Rolfe, permitted to do so. See State she did not receive statements made (1968); Idaho 444 P.2d 428 State v. prosecution Jones to the prior to trial in Urie, (1968). 92 Idaho 437 P.2d 24 A view of Ralston’s prelimi- disclosure at the motion for mistrial to the trial is directed nary hearing of the substance of Jones’ trial court’s sound discretion and the court’s rul testimony. The trial court did not commit ing thereon will not be disturbed unless it is reversible error in denying defendant Ow- shown that the trial court abused its discre motions, ens’ discovery nor was it reversible that, result, tion and as a the defendant’s error for prosecution to fail to disclose rights prejudiced. were v. Ramsbot any statements by Hepburn and Jones it tom, P.2d 384 may possessed, have even absent court Where to an the witness was not allowed order directing it to do so. court, question swer the and where the trial

Defendant argues Owens the trial expressing its belief that an instruction court should granted have her motion for a any prejudi would be sufficient to correct mistrial prosecutorial because of misconduct cial inferences which resulted resulting prejudice to her. claims She question, instructed the prejudicial inferences disregard were question, we do not find that planted when prosecutor asked one of the trial court’s denial of defendant’s mo witnesses, Pederson, defendant’s Rick tion for a mistrial constituted an abuse whether he had ever any cattle while its discretion.

working for the defendant. alleges Owens also that her mo

In Idaho a witness cannot be granted tion for mistrial should have been questioned about his participation wrong in because the state called two witnesses in its

640 presumed until having per-

case in chief who ant be innocent admitted to jured beyond state a reasonable prior proceedings. proven by themselves Owens, however, object However, did not to doubt. fact that the state’s case in and, pursuant to chief have instruction at trial may part consisted in of testimo- law, ny waived by having witnesses who admitted to Idaho must be deemed 30; I.C.R. objection testified the instruction. falsely preliminary hearing any at the Collinsworth, Idaho 539 compel grant did not the trial court v. State States, wish, (1975). they if defendant’s motion for a mistrial. In Idaho P.2d 263 “The convictions credibility past of a witness is to be insulate con- be able to valid rule that enforcing sidered the finder of fact in its determi- the normal and weight nation of the to be instruction is a object the testi- failure to to a See, mony g., e. by the witness. The fact that a wit- waiver of error. any claim ness called the state has 30.” Hankerson v. per- admitted Fed.Rule Crim.Proc. 233, 244, n.8, juring Carolina, himself is certainly relevant to a North 432 U.S. 2339, 2345, n.8, (1977). determination of the credibility to be 53 L.Ed.2d 306 af- S.Ct. testimony. However, forded that witness’s BISTLINE, Justice, dissenting. the witness’s testimony is admissible into Montana, 442 Sandstrom v. U.S. -203; evidence. I.C. 9-201 to Big Butte §§ (1979), had not S.Ct. 61 L.Ed.2d 39 Ranch, Grasmick, Inc. v. 91 Idaho been handed down when this case was laid (1966); Orr, P.2d 48 v. Idaho jury. before a Nor was availa Sandstrom (1933). 24 P.2d 679 McCoy, ble at the trial of We have examined appellant’s other as- surpris P.2d 517 It is not signments of error and have concluded that ing type that the disapproved instruction none rulings of the trial court’s concerning challenged was not Sandstrom either those assignments constituted error. this case or in In in this McCoy. McCoy as Judgment affirmed. case, after announcing opinions affirming case, granted the convictions in each we DONALDSON, J., SHEPARD, C. petitions rehearing. During this inter BISTLINE, JJ., McFADDEN and concur. decided, brought im Sandstrom was opinion our attention. In first McCoy our ON REHEARING withdrawn, affirming the conviction was opinion and a new reversed issued which PER CURIAM: trial, prejudicial the conviction for error at rehearing having grant- Petition for been McCoy specif and allowed a new trial-with ed in the above entitled cause and the case ic directions that at the new trial the Sand rebriefed reargued, strom given. instruction would not be adheres to THE MAJORITY the views case, however, majority of the Court expressed original opinion. in the Court’s reverse, unwilling despite plethora are record, Owens on Appellant rehearing has of other error in the and hence this raised for the first time the additional issue defendant will not be accorded the same that the trial court’s instruction to the jury treatment. It is said in defense of this “[e]very person presumed “Owens, however, disparate to intend treatment and, probable consequences natural and object did not to the instruction at trial requires law, his act” reversal of her pursuant conviction. to Idaho must be deemed to instruction, A similar any objection Sandstrom Mon have waived to the instruc tana, 61 L.Ed.2d Admittedly tion.” counsel for Owens was decided after Owens’ trial and more omniscient than counsel for appeal, and, initial to impermissibly McCoy, any premonition held sans permit pre Sandstrom, in a criminal case to objec imminent arrival of no intent, sume contrary to the traditional due tion was points made. The Court to a foot process requirement Carolina, that a criminal defend- note Hankerson v. North 233,244, n.8, 97 2339, 2345, n.8, purpose major the of new con- S.Ct. U.S. “[w]here (1977) (gratuitous) L.Ed. 306 as the advice to overcome an stitutional doctrine is as- apply object” it to the “failure to prompting pect of the criminal trial that substantial- against Owens. rationale truth-finding function and ly impairs its about the accu- questions so raises serious logical question presents which here trials, past guilty of verdicts Court, racy having is whether still this itself this bowels, given complete new rule has been retro- case within its should endeavor to justice in view of the law as it has been do active at effect.” 432 U.S. deliberate, whilst or is it pronounced we (Emphasis 316. L.Ed.2d at upon procedural better course to seize some original.) way excuse-in no attributable de- York, In Ivan V. v. of New City U.S. doing fendant herself-for so. The an- 203, 204, 1951, 1952, L.Ed.2d S.Ct. law, swer found both in own decision our decision, (1972), in curiam per in holdings and of Supreme Court of the Supreme held: Court had earlier United States. The of impact the Sand- major “Where the of new consti- purpose strom instruction on the cannot be tutional aspect doctrine is overcome an to overestimated. No direct evidence linked of substantially criminal trial the accused with an taking actual felonious impairs truth-finding its function and so of the animal. merely It was shown to raises about the accura- questions serious have been in possession some four trials, cy past guilty after verdicts being pasture months to turned complete owner. All the new retro- pos- State established was rule has been session. The good-faith instruction allowed the to active effect. re- ‘Neither find the guilty accused of the offense mere- liance authorities on state or federal ly because she at one time intended to and prior accepted prac- law or constitutional possession. did take The instruction elimi- tice, on impact nor severe the administra- nated the need prove a felonious intent. justice tion of sufficed to require has point An additional is the concomitant error prospective application in these circum- ” of instructing the defendant’s added.) stances.’ (Emphasis unexplained possession the “recently sto- In Hankerson Supreme Court added to len property raised an inference of rule of law: be itself to enough by justify “It is true that we have said that conviction.” This instruction improperly question purpose of whether the of a new failed leave it to the to determine constitutional rule to enhance the in whether or not the had animal ever in fact tegrity of factfinding process is a stolen, been but damagingly more amount- question of ‘degree,’ Johnson v. New Jer ed to a directed verdict sey, supra, at S.Ct. 1772, 1778,]16 telling the jury that the inference was in [86 raised, L.Ed.2d Misc. fact Ohio 36 Ohio was sufficient to justify a 439; guilty App.2d verdict. degree Hence the instructions on and when the “intent” and on of recently sto- which the rule the integrity enhances property, placed len taken together, the factfinding process is sufficiently burden on proving defendant of her inno- small, we have to questions looked cence, against both contrary “inference” reliance the old rule and a contrary “presumption”-each being the impact of the new rule on the admin in language couched the jury could istration justice deciding whether the readily consider mandatory. new rule is to applied, retroactively. Denno, Stovall supra;

Returning Adams v. Illi my observation that nois, Woods, supra; improperly apply declines DeStefano Sand- strom its disposition appeal, I L.Ed.2d [88 2093] submit that Hankerson much merits closer But we never deviated from ‘ attention than it has received: the rule stated in Ivan V. that “[w]here

642 adjudicated un- situated have their claims of new constitutional major purpose com- hardly This aspect is to der the old doctrine.

doctrine overcome an of substantially impairs trial with the ideal of ‘administration ports criminal v. Desist justice and so an even hand.’ truth-finding its function raises at States, supra, of U.S. questions accuracy 244] about United serious [394 1037, trials, 1030, 22 L.Ed.2d past in the new rule 255 guilty 248] verdicts S.Ct. [89 ” J., (Douglas, dissenting). given complete retroactive effect.’ [is] 407 U.S. at 204, 92 S.Ct. 1951, ^[1952] 32 added). rea (emphasis 659 L.Ed.2d retroac- approach “A to the different proof standard of is as

sonable-doubt in is Described tivity question available. requirement under Mulla ‘substantial’ separate Harlan’s detail in Mr. Justice Respondent’s ney Winship. as it was in contemplates, Mackey, in it opinion supra, Ivan V. is without attempt distinguish outline, a new apply rough that courts 2339, 233, 244, 97 merit.” 432 S.Ct. U.S. retroactively pending still rule cases 315, 2345, (emphasis in 53 L.Ed.2d 316 review, on collateral direct whereas cases original). be considered ordinarily review V., when Hankerson, light of rule as it stood as in Ivan there final. Mr. Justice single not a In Hankerson two conviction became dissent. rea- compellingly the court in the Harlan marshaled members concurred view, U.S., at 401 judgment separately soning supporting wrote on the this both 1164, 675-698, me to at for retroactivity. issue Marshall Justice S.Ct. would be arguments here repeat wrote: ap- pointless. simply I note States, 401 “In Williams v. United U.S. principled, proach closer the ideal 665, 1148, 1159, 646, 28 L.Ed.2d S.Ct. review is the judicial evenhanded than (1971), I view that ‘a expressed At the retroactivity traditional doctrine. construing decision this Court Con- same it is more attuned his- time to the applied retroactively stitution should be habeas torical limitations on see corpus, involving cases criminal convictions all Powell, v. 465, Stone 428 U.S. 96 S.Ct. final at the time our decision yet not 3037, (1976), 49 L.Ed.2d 1067 to the persuasively reasons stat- .rendered.’ For importance finality sys- in a rational Harlan, ed time Mr. Justice at that Allison, justice. Blackledge tem of See States, 401 Mackey v. United U.S. 431 U.S. S.Ct. 1160, 1164, 28 L.Ed.2d 404 91 S.Ct. (1977) (Powell, J., L.Ed.2d 136 concur- (1971), I ‘cases still on concluded ring). full review should receive benefit direct “The before supervening constitutional deci- case üs is here on direct our agree to the review. I therefore with the ... I remain committed sions.’ in Wil- that Hankerson is entitled to retroactive opinion approach my outlined Mullaney application here on rule. Ac- case is direct liams. Since this cordingly, judgment.” 97 review, holding I concur in the I in the Court’s concur added) (footnotes Mullaney (emphasis at 2346 rule S.Ct. announced omitted). Wilbur, applied.” L.Ed.2d 659 must state- Giving consideration due at 2346. Mar- and Justice ments of Justice Powell Powell shall, Justice wrote: apparent that footnote it is at once opinion in Hankerson was new to the Court’s to hold a “When Court declines retroactive, post-conviction cases-and one chance aimed rule constitutional author, its Justice at all intended whose beneficiary-the lucky individual White, escape apply- avenue of an- an as the case was chosen occasion principle to a case new ing retro- constitutional nouncing prineiple-enjoys new review. direct similarly pending on others still application, active while was exactly doing Such the situation in Han- consideration and so the lower kerson, a appeal, by certiorari, direct trial. deprived him of fair court Supreme Court from the Supreme Court of to raise an for defendant failed Counsel North Carolina. As noted in opinion, at objection to the cross-examination high the North ordinarily Carolina court this refused of trial and the time Wilbur, apply Mullaney v. assign- this would not consider Court 1881, 44 (1975), obligation L.Ed.2d 508 on Han- of ment error. However appeal kerson’s because he had tried re- been state to see that 21, 1974, prior on November and funda- primary decision a fair trial is ceive Mullaney June, in in 1975. 97 2343. In fun- [Citing S.Ct. at case of mental. cases] As noted in footnote the North Carolina error in a criminal case damental Supreme passed Court on the validity the same Supreme Court consider notwithstanding instruction any the lack though objection had been even no objection at trial. at 94 Idaho at made time of trial.’ at 262. P.2d unusual, This was not assuming that that the com- “Because variance between court, this, recognized has that funda- plaint appellant and conviction denies mental error going to the integrity of the law, process due she not waived has factfinding process will necessitate a rever- though no right object objec- even even sal saving objection absent a trial. at tion been made. previously has Neither In State v. Cariaga, 95 Idaho can issue ignore this Court because it (1974), P.2d 32 the opinion notes that “Dur- assigned has not been as error in the ing oral argument before this Court 903-04, original briefs.” 95 Idaho at question was raised as to whether not or added). (emphasis P.2d at 35-36 appellant was convicted of the crime Swenor, 96 Idaho which she was charged.” 95 Idaho at (1974), P.2d dissent, Justice Bakes in 523 P.2d at 34. aTo contention that joined by McQuade, urged Justice that it defendant had right waived his to that chal- part was error on the of the Court not to lenge by object, failing to said: appeal consider on as “fundamental error” “Rather, we feel the issue of whether admission of certain hearsay, where the ba- not appellant or objec- has waived any sis refusing was that no assign- might tions she have is our controlled ment error made this Court: decision in v. Haggard, assignments “While of error are helpful 486 P.2d 260 where we held having reasonably issues but rigid- that where a fundamental error has been advance, ly clarified in they should not trial, committed in a criminal this Court a become vehicle by which this Court may consider it though even no objection regresses to century the 19th technicali- was made in the trial court. ‘ ties of the common pleading system.” law “The appellant contends that he at Idaho at 678. P.2d process denied due deprived a fair trial because the at- prosecuting evidence before the showed at torney elicited at trial Haggard that best (accepting it as prose- favorable to the did not tell judge of his alibi cution) at she that took into her an preliminary hearing. Appellant animal, main- marked with no brand visible or tains that this information should not ownership, wandering indicia of large have been made available for the jury’s public a road.1 viewed, way 1. So her situation was in country, may no unmarked animal at loose in the different from case, that of a wrong exercising driver in downtown be dominion each Boise, Idaho, lucky enough hardly presumed to come across but should to have had the lying carton of beef on the street committing larceny, at an intersec- intention hardly the act tion, repose obviously sliding it found in be made to his establish innocence pickup rounding out of a shifting the comer. The aver- proof. of the burden of appropriator age beef, of the carton of or the struck four mem- the instruction down Sandstrom. to which opinion, Court’s adhere, wrote: major of a court disposes

bers continue to As the Sandstrom assignment of with a three-sentence ‘the error told that jurors were “Sandstrom’s citations, which, omitting reads: paragraph person that intends presumes law voluntary consequences of his ordinary argument the trial “. .. Owens’ had a they were not told They acts.’ instructing court erred in choice, infer con- they might unexplained possession of the defendant’s clusion; the law only that they were told raise in- property may an recently reasonable it. It clear presumed that the defendant committed the

ference such an easily viewed juror could merit. the state larceny is without Once mandatory.” 99 S.Ct. as instruction support which would submitted evidence 2454. stolen, it was finding a that the heifer give to error for the trial court foregoing quotation, was not Accordingly, per the as partici- the instruction. The defendant’s the instruc- argument that rejected it the from a may “merely be inferred described pation challenged in theft tion there is, unexplained possession it allowed but permissive the defendant’s inference-that to draw conclusions require jury the recently property.” stolen did not from his actions- defendant’s intent about ready in the Court’s primary fault The are constitutional.” inferences and that such in fact issue is found the disposition of this at 2454. 99 S.Ct. that did not instruct court below the Here, case, jury in the was not Owens' raise in- possession “may” an unexplained in If the given any choice the matter. Rather, the trial court question. in ference here at giving such instruction was the to jury did not leave it to instructions appropriate-a concerning all matter which make the determination. was grave I have one which doubts-the You in- NO. 41. are “INSTRUCTION today ap- and the Court in state structed that the law this is that proves, was unconstitutional. prove the burden on the is to State instruction, the proper and one which A posses- the in animal found defendant’s apparently given, believes is the stolen in the sion was same animal States, in found Barnes United this, has larceny. Once the State done (1973): 37 L.Ed.2d 380 U.S. recently unexplained possession the recently property, stolen “Possession of if raises inference of an is satisfactorily explained, ordinarily not enough by itself to may and be you may from which rea a circumstance It larceny. is the justify conviction find, sonably the inference draw and jury of the to determine from the duty light surrounding the of the circumstanc not possession evidence whether or case, es shown the evidence the explained.” sufficiently animal has been person possession proper the knew the added.) (Emphasis had been stolen.” 412 U.S. at ty 839 — Court, fear, I fails note that the 93 S.Ct. at 2360. unexplained was thus instructed that challenged differences between the inference, possession raises an it instruction and Barnes instruction are may Instructing raise an inference. considerable, in main it is but sufficient raised, an fact jury that inference was in point proper out that instruction would being told that such an infer- further only, for a inference permissive allow enough by justify ence itself to is, “may” the inference be drawn. conviction, against verdict to direct a per- unless she was able to The Barnes instruction went even further otherwise,by expla- a sufficient being suade them the instruction protecting possible, adding is a second mandatory, No other construction as as nation. construed in Ow- presump- paragraph of a conclusive that which was omitted in this manner case: tion instruction is as unconstitutional ens’ “However, cannot but be said to be you required are never made to under- make this inference. It is the exclusive unexplained stand that such possession province to determine wheth- guilt. tantamount er the facts and circumstances shown Trowbridge recognized the Court the evidence in this case warrant any the task before it was “to determine if the permits inference which the law presumption, allowing instant to draw from the of recently fact, presume legally an ultimate which is n.3, stolen property.” 412 at 840 U.S. one of the elements of the crime to be S.Ct. at 2360 n.3. proved by beyond a reasonable Making it difficult why to understand (knowledge belief), doubt proof trial court here not only misworded the (possession), of another affords fact due first paragraph of the instruction, Barnes process, analysis be that labeled the ‘ration- give failed to paragraph, second al connection’ test or ‘reasonable doubt’ singular fact that paragraphs both were (em- standard.” Id. at 540 P.2d at set forth in a footnote to v. Trow phasis original). Applying rational bridge, n.15, 540 P.2d States, connection of Tot v. United 282 n.15 In that case this Court L.Ed. 1519 considered a case where defendant was Court Trowbridge in held that the instruc- charged stealing, not with but with receiv tion given-a there presumption guilt of ing stolen property. The Court there dis arises-was improper, but that a could jury cussed permissive inferences presump and properly be instructed unexplained tions, holding erroneous an giv instruction possession of recent stolen property “is a en to the that “a presumption guilt of tending circumstance knowledge infer of arises when the defendant pos is found in ” the unlawful character of property, the and session of recently property.... stolen together circumstance taken with a 95, Id. at 540 P.2d at 280. The Court there necessary quantum of other incriminating pointed out that although earlier decisions evidence, may be used the approved had of reach inference instructions in verdict, cases, in light larceny of their only to collective com- the extent of permissive inferences, experience, mon more and the circumstances recent Idaho sur- cases were rounding said to have the “held that case.” pre Id. at 540 P.2d at sumption guilt of (emphasis arises from 282 original). the unex in plained possession of recently proper stolen language adopted by the Court in ty.” 95-96, Id. at 540 P.2d at 280-81. And articulating holding was taken almost apparently that is the status of the Idaho instruction, verbatim from the Barnes of Supreme Court pronouncements at the which the first two paragraphs were foot- present time, with the today uphold Court noted, and attention drawn immedi- thereto ing an instruction which is mandatory rath ately following Trowbridge holding. the er permissive, than but the Court saying as that which the Essentially, Court did in it does that participation defendant’s “[t]he Trowbridge proper applica- was to make a in a theft be inferred from the defend by invalidating tion of Barnes the unconsti- ant’s unexplained possession recently of sto tutional that a presumption len instruction of property.” (Again, my emphasis add ed.) guilt charges of receiving arose-at least significance in property. stolen Of extreme In Trowbridge the instruction under chal- Trowbridge acceptance is the total of lenge told possession the that unless question Barnes where the inference in satisfactorily explained presumption of comes from the common law rather than guilt arises. This is no more and no less legislature: here, than the instruction which told the Barnes, unexplained possession agree that the raises “We must also with courts, too, an guilt inference of sufficient in itself to are process bound due justify conviction. In both cases the jury establishing in rules of evidence: ‘Com-

646 Gilbert, P.2d 584 65 Idaho v. inferences, statutory State like their

mon-law at n.5, P.2d in 97 Idaho process must at 96 counterparts, satisfy due ” said The latest the evolution present experience.’ of n.5. light day Ponthier, (quoting 92 Idaho P.2d Idaho at 540 P.2d at 282 v. States, 837 at v. United 412 U.S. infra. Barnes discussed 844-45, (1973)). at 2362 from Gilbert was: exact statement Here, course, with the of our is not concern explanation satisfactory “In the absence receiving stolen charge possessing or circumstance as to the fact and by appellant charge property, but the heavier presumption this raised a possession, place. in the first having property stolen Bates, (State v. larceny. he committed declining approve pre- of a the arise 119, 117 281.)” (2d) P. 65 Idaho at 63 Idaho sumption Trowbridge, instruction added). (emphasis P.2d at presumption mentioned that in- such Bates, however, no lan contained applied prosecutions structions had been suggested guage which authorized larceny burglary, for 97 Idaho embodying such giving of an instruction 281, saying “[j]ury 540 P.2d at instruc- Bates, making use of Instead, statement. pre- denominating principle tions sumption that a Davis, last used language type arises from the sufficiency the sole issue was wherein sanc- recently have been conviction of the evidence sustain tioned this Court.” Id. at 540 P.2d at insufficiency), and (which was reversed (emphasis added). pointed As will be made to the challenge whatever with no out, presump- such sanction to giving court, said trial given by instructions burglary in larceny tion instruction this: entirely cases was tacit. As the Court insuffici- “As contention [the mentioned, cases, of Trowbridge earlier urges that the state ency of evidence] Davis, 65 P.2d which State of sto- unexplained possession recent the latest, (1937), was the chronologically 1385 from is circumstance property len a type this had been show that of instruction may be guilt the the accused which of of couched in days properly since statehood law undoubtedly is the in inferred. Such of being possession terms of found in the 257, (State 7 Ida. Seymour, this state. v. circumstance recently property stolen as “a 1033; Marquardson, v. 7 61 Pac. State which, guilt when the of unexplained, from Sanford, 1034; 352, v. 62 Pac. 8 Ida. State be the accused mav inferred.” 97 Idaho at * * * 492; 187, 67 Pac. other Ida. [and (The underscoring at 280. is 540 P.2d including] v. citations down to and State own, my original, clearly not but is in the Vanek, (2d) 567.)” 59 Ida. Pac. in indicating emphasis the which the Court 121, 117 P.2d at 281. Idaho that, in placing upon that case was the fact jus- not only does the Bates statement Not case, being found a circumstantial evidence Gilbert, but the statement found in in tify of but an- possession property in stolen is latter case as as in the former the well case, and, as is so other circumstance of the no to the Su- presented there was issue circumstances, give rise to an may with all validity to of in- preme Court as the guilt.) of fact on the defendant’s inference pre- what or struction as what inference Davis, of Subsequent to decisions “[l]ater arise, arose, as to might the sumption this part for most abandoned being possession in the of accused found have, in- theory inference permissive Bates, As in recently property. stolen stead, guilt held that a of presumption only in was made statement found Gilbert of unexplained possession arises from assignment with of error in connection 95- Idaho at recently property.” stolen justify the evidence was insufficient earliest of P.2d at The 280-81. the verdict. decisions, turning fact these later Moreover, original an examination of the theory did point in the evolution of a with the clerk appeal to be record on file just is said Gilbert happened, not evolve but of this expressly Court reveals that court law directed to be drawn trial from a gave no type instruction whatever of the proved fact. Unless declared law to be under consideration. The Davis instruction conclusive, a be presumption may overcome given; was not the so-called Gilbert instruc- evidence, overcome, it is by other but unless tion was given. who judge district is bound accordance jury to find in instructed burglary Gilbert’s the presumption.” told only trial the jury they were the states, opinion As Ponthier defendant facts, sole judges exclusive appeal there on the the chal- raised proven case, what was in the and that lenge that the was insufficient evidence making such determination the jury should sustain the Defendant there conviction. take into consideration facts and cir- Burglary p. cited 13 Am.Jur.2d § placed cumstances Similarly in evidence. that, proposition absent other evi- a recent larceny before case this Court a connecting dence with the bur- defendant more post recent mortem review glary, “a of the sto- possession secondhand instructions case shows that len is not raise an sufficient judge another able trial avoided giving possession guilt inference of since the must of either the presumption-of-guilt instruc- possession previous exclusive of a tion, or the may-raise-an-inference in- brief, citing no others.” State’s Idaho struction-notwithstanding Trowbridge cases, California, but instead cases implicit Supreme Court sanction Iowa, Georgia, Illinois and contended that giving of even pre- the more damaging “possession of in the burglary items taken sumption-of-guilt instruction. v. Er- State win, sufficient to authorize an inference Idaho P.2d 170 satisfactorily explained Therein unless instruction no. 7 in a set ex- tremely well worded but succinct instruc- tions, after out that pointing types the two cases of The State cited the Idaho of evidence from which a may properly Lott, (1965) 409 P.2d 119 guilty find of a crime include Haggard, Idaho circumstantial evidence well as direct P.2d proposition for the evidence, told the that circumstantial charge posses- the mere burglary, “[o]n “is proof evidence of certain cir- facts and sion the Defend- recently goods cumstances from which the infer upon ant which to is sufficient evidence other connected facts which usually and convict the Defendant.” reasonably according follow to the common noted, opinion As be in will the Court’s experience instruction, of mankind.” This Ponthier observed defendant that “[t]he given Gilbert, as with that in was sufficient question does not the rule of law seemingly argument to allow to the that where unexplained of possession recently possession recently found in of property stolen inference raises an of is a property, stolen such from circumstance guilt.” 92 Idaho at 449 P.2d at 365. guilt which the of the accused in- may be Ponthier, then, Gilbert, as has to be with ferred, Bates, as set forth in and similar contrary re-evaluated to the intimation of language of Davis and larceny earlier too, It, presented the note in Trowbridge. burglary cases. the giving court with no issue of instructions, The Ponthier on file in the with which we are here instruction con- office, pre- clerk’s did not include either a cerned, and with which the court was con- instruction, sumption-of-guilt may- or a Trowbridge. cerned in

give-rise-to-an-inference instruction. Rather the instructed as So much for a review those only, of Idaho cases evidence, say the circumstantial in- which caused Court in Trow- “[a]n logical may bridge had, ference is a begin- conclusion which be that the Court decisions Gilbert, reasonably proved drawn from a A ning part fact. “for most aban- presumption assumption is an permissive which doned this theory inference instead, The must be told that

have, “presumption.” presumption held that a of guilt unexplained possession arises from the possession but a circum- unexplained recently property.” of stolen 97 Idaho at guilt of from which an inference stance 95-96, pointed 540 P.2d at 280-81. As I out may drawn. be above, this any was not evolution of the until the unfortu- It was ever so in Idaho law, change but rather a drastic in funda- Gilbert, which in language nate choice of mental law born of an inadvertent misstate- Trowbridge. in wholly was not corrected ment in Gilbert-in which case there was no Stanford, 67 P. issue whatever on the instruction. The mis- naturally would which one a Court statement, Court, occasioned has “traditional versed in expect to find well date, survived until this although it came said that inferences” common-law under scrutiny Trowbridge wherein the would Supreme Court the United States approve Court refused to an instruction of law say: also rule later in Barnes “[T]he telling presumption guilt that a of prop- possession recently stolen [is] possession possession arises from in a case- which, when is a circumstance from erty leaving nevertheless the Court stand guilt of the accused unexplained, the impression that such an instruction would Idaho at 67 P. at 493 be inferred.” 8 proper larceny burglary be in a case. added). (emphasis Unfortunately, in Trowbridge the Court did deeper delve in an effort to ascertain argue To those who fain from change whence came the drastic contrary, suggest only I the United law as stated in Gilbert. Sandstrom, where Supreme Court in States constitutionally Of that the correct and Supreme had earlier the Montana sound principle of set forth in law was in- giving “presumption” upheld the Davis be no and earlier cases there can struction, of Mon- responded to the state doubt. mere- the instruction argument tana’s “that is, inference-that permissive States described a Supreme ly Court of the United Barnes, jury to require U.S. at allowed but did not it may be intent noted that the inference which about defendant’s draw conclusions proof drawn such upon ”, based saying from his actions ... common- stolen is “a traditional long .... detain us need not “arguments law. rooted our deeply law inference juror could a reasonable It is clear that juries have instructed For centuries courts as instruction such an easily have viewed knowledge may guilty that an inference at 2454. mandatory.” S.Ct. unexplained pos- fact of drawn from the here argued how it can be I fail to see The instruction goods.” session of stolen fire was less instruction under that the the Barnes court in Barnes was unconstitu- any less mandatory, and hence only permitting the inference observed as instruction, pointed tional. Owens possession of unexplained couched out, absolutely not first of all is Id. at recently property. being permissive inference. terms to that statement at 2362. A footnote mandatory, in terms Rather it was couched jury “The contains the crucial statement: was in- jury the and to the extent that particu- accept any or believe not bound to of unexplained that the formed than it is bound to any lar more explanation (not it that raises recently inference.” accept the correctness may “and raise) guilt, of an inference might n.9, at n.9. Obvi- Id. at 845 for justify conviction itself to enough by be jury instructs the instruction that ously an inference, it be whether larceny.” An arise, but that may that inference just not other, which by any name or by that called arise, jury no gives the an inference does is in fact inference that such jury the tells disbelieve, in that and leeway to believe or juror in the raised, justifies by itself by way lessened any not in light the harm is she has unless guilty, finding defendant than the rather use of the word “inference” ’ at 580 P.2d it, “knowingly,” or “purposely” mandatory and is unconsti- explained added), Montana Su- argument As to that it was the any tutional. (emphasis are, inference, at the a we that decisively least rebuttable established preme Court be, by only that which the unani- bur- should bound the most affected at presumption mous court said: in- Sandstrom evidence with going forward den of production. is, burden the tent-that alternative, respondent urges

“In the that viewed mandatory presumption even if as a is, of Montana Court Supreme “The inference, as permissive rather than a the legal the course, authority final the presumption conclusively not did establish under presumption a given be weight to be intent but rather could rebutted. On final authori- the law, it is not but Montana view, this the required jury, instruction the a could jury which interpretation ty on the if as to trigger satisfied the facts which the If Montana instruction. given have the presumption, to intent the find unless de- only the have to presumption intended its offered to contrary. fendant evidence the Court, then Supreme by its effect described Moreover, State, according to the all the juror a reasonable we are convinced that had to presump- to do rebut the instruc- the could have been misled well evidence; produce tion was ‘some’ contrary the believed that have given, tion and could he ‘prove’ did not have to he lacked the requiring to limited presumption was not most, Thus, required mental state. it ‘[a]t a burden satisfy the defendant to placed peti- a production burden of on the production. told Petitioner’s tioner,’ but to petitioner ‘did not shift the the person ‘the law a intends presumes that persuasion burden of with respect to voluntary his ordinary consequences of ’ element of the offense... for Brief Re- pre- acts.’ the They were not told spondent added). Again, 3 (emphasis re- rebutted, sumption as the Montana could spondent that presumptions contends held, Supreme by the defendant’s limited pass effect constitutional mus- evidence; nor simple presentation of ‘some’ ter. at all. Given even that it could be rebutted respondent’s “We need not review consti- ‘to ‘presume’ the as common definition of either, argument point tutional on this how- suppose proof,’ be true without Webster’s ever, we reject for this characterization of Collegiate New Dictionary well. presumption Respondent the as con- instructions as given qualifying the lack of jury, there is ‘risk’ that cedes once we the legal presumption, effect of the having petitioner’s found act voluntary, possibility cannot discount interpret the instruction as automati- interpreted instruction in ei- may have cally directing finding of intent. Tr. of ways. ther of stringent two more Moreover, 29. Arg. Oral the State also “First, could well have a reasonable ‘have concedes that numerous courts dif- ‘conclusive,’ interpreted presumption as presumption fered as the effect is, presumption technically as when as a instruction without all, but rather as an irrebuttable direction explanation further its use find once by the court to intent convinced have it to jury,’ and that some found shift triggering presumption. of the facts of production, more than burden interpret- have Alternatively, jury may Brief even to conclusive effect. find a direction to ed instruction as Nonetheless, Respondent 17. con- volun- upon proof intent the defendant’s reading the only tends that authoritative (and conse- tary ‘ordinary’ their actions presumption effect of the resides in proved the quences), unless the defendant Montana. Supreme Court of And proof contrary quantum of by some argues holding that ‘[defendant's considerably greater have been well sole burden under instruction No. 5 effectively shift- produce than ‘some’ evidence-thus some evidence that not he did in- ing persuasion on the element consequences his burden ordinary tend vol- acts, disprove he of intent. Numerous federal and state untary not to that acted App. 42. It is clear that under Montana of the that instructions have warned courts law, just pur- whether the interpreted crime was committed given here can be type posely knowingly necessary the Mon- or is a fact although And ways. these ... contrary homicide. held to the constitute crime of deliberate Supreme tana case, Indeed, Rules of Evidence of the of- Montana’s own it was the lone element trial, at is- presumption that as he expressly state fense at issue in Sandstrom’s only ‘by pre- may here be overcome the vic- causing sue confessed to the death of pre- contrary tim, ponderance knowledge pur- of evidence told the that Rules of Evidence sumption.’ Montana questions were he was contro- pose only not 301(b)(2). requirement shifts solely Such verting, and introduced evidence on but also the production, the burden of Moreover, it points. App. those 6-7. persuasion on the issue ultimate burden of ‘intent’ proof of defendant’s conceded that of intent. this ele- would be sufficient to establish Thus, before this Court question ment. reject possibility not that “We do jury instruction challenged is whether the the chal- jurors may interpreted some have relieving the effect of had the or, if man- lenged permissive, instruction as Winship on enunciated proof burden of that the defendant datory, requiring only petitioner’s state question the critical evidence in re- with ‘some’ come forward under either that mind. We conclude However, fact that a reasona- buttal. of the in- interpretations possible the two given presumption juror ble could above, effect precisely that set out struction effect persuasion-shifting conclusive there- result, instruction and that the possibili- cannot discount means we error. represents constitutional fore pro- jurors actually did ty Sandstrom’s of these latter the other upon ceed one or con- validity of a “We consider first means that un- And that interpretations. has con- This Court presumption. clusive are consti- presumptions less these kinds of at least two presumption sidered such a adjudged tutional, cannot be the instruction v. United In Morissette prior occasions. urged cases It is the line of valid.... 96 L.Ed. States, S.Ct. by In re Win- petitioner, exemplified with charged (1952), 1068, L.Ed.2d ship, 397 U.S. S.Ct. government knowing willful and theft appropriate provides argued attorney Although his property. ‘ analysis for these mode of constitutional “the guilty, to be found that for his client presumptions. kinds of felonious in- taking must have been ‘ tent”,’ judge ruled the trial “[t]hat ’ Ill Id., at act.” by his own presumed Winship, concluding “In this Court stated: at 243. After first “ of the crime in fact an element intent was there remain doubt about ‘Lest ‘[wjhere declaring after charged, and of the reasonable- constitutional stature ingredient is an standard, hold that intent of the accused explicitly we doubt is a ... charged, its existence the ac- crime protects the Due Process Clause upon issue.’ Morissette held: except conviction cused “ every doubt of proof beyond a reasonable ‘It follows that the trial court the crime necessary fact to constitute the issue prejudge withdraw or at charged.’ 397 U.S. with which he is presump raises a instruction that the law added). (emphasis 90 S.Ct. at It often is an act. tion of intent from “presump of a York, U.S., to cast in terms tempting “Accord, New Patterson v. thinks which a court a conclusion petitioner tion” at 2327. facts.... probable convicted of [But] with and charged here was has no presumptive intent homicide, think purposely or committed deliberate [w]e presump case. A in this conclusive place 1947 Mont.Rev.Codes knowingly, under testimony overthrow could not 1973). tion 94-5-102(a) (Crim.Code of See §

651 effectively would eliminate intent as an decision on issue of the intent must be ingredient the presumption of offense. A left to the trier of fact The in- alone. permit require which would but not the struction given factfinding invaded this 446, U.S., 435, to assume intent from an isolated 98 function.’ at S.Ct. 438 fact prejudge would a which (emphasis added). conclusion at 2878 the jury should reach own of its volition. States, “See also v. United 160 Hickory U.S. A presumption permit which would 408, 422, 327, 332, 40 L.Ed. 474 S.Ct. jury to make an which assumption all the (1896). evidence considered together does not “As in Gyp- Morissette and United States logically establish give proven would to a sum, presumption in this case conclusive fact an artificial and fictional effect. overriding pre- would ‘conflict case, either this presumption would con sumption of innocence with which law flict overriding presumption with the of endows the accused which extends to innocence with which the law endows the crime,’ every element would accused to every and which extends ele factfinding ‘invade which in function’ [the] ” U.S., ment of the crime.’ at 274- assigns solely a criminal law case the (Emphasis at S.Ct. 255-256. dde jury.... d.) which, “A presumption although not con- Term, “Just last in United States v. Unit- clusive, shifting had effect of the bur- ed States Gypsum, 438 S.Ct. defendant, persuasion of den 2864, 57 L.Ed.2d 854 we reaffirmed have suffered from similar infirmities. If the holding of Morissette. In that case interpreted presump- Sandstrom’s defendants, who charged were with crimi- manner, tion that it could have concluded nal Act, violations the Sherman chal- upon proof by slaying, that the State of the lenged following jury instruction: and of facts es- additional not themselves presumes ‘“The law person that in- intent, tablishing the the burden element tends the necessary and natural conse- was prove shifted to the defendant quences Therefore, of his acts. if the requisite he lacked the mental state. Such effect of the exchanges of pricing infor- presumption was found constitutionally raise, fix, mation towas maintain and Wilbur, deficient Mullaney 421 U.S. stabilize prices, then the parties them S.Ct. L.Ed.2d 508 presumed, are law, as a matter of to have murder, In Mullaney charge which intended that result.’ Id. at S.Ct. required proof under Maine law at 2869. intent but of malice. The trial court “After again determining offense ‘ charged “malice afore- intent, included the element of we held thought indispensable is an essential and “ ’ defendant’s state of mind or intent ‘[A] Id., element of the crime murder.” at is an element of a criminal antitrust of- However, at 1883. it also fense ... cannot taken from prosecution instructed if estab- the trier through of fact reliance on a lished that the homicide was both intention- legal presumption wrongful intent unlawful, aforethought al and malice proof effect prices. on Cf. Moris- implied proved to be unless sette v. United States .... by a fair preponderance of the evidence he acted in the heat of passion on

“ ‘Although Wilbur, an effect prices provocation. well sudden Mullaney support an U.S., inference that the defendant S.Ct. at 1883. As we had knowledge probability of such just recounted Terms ago two in Patterson acted, a consequence at the York, time he Newv. unanimously ... ‘[t]his jury must agreed remain free to consider addi- with the Court of Appeals Wil- reject- tional before accepting evidence process rights bur’s due had been invaded ing the [Ultimately inference.... by the presumption casting upon him the

652 may permitted be to infer a proving by jury

burden of a of that the preponderance beyond the a evidence that he had fact a established acted the heat from fact However, jury of the passion provocation.’ doubt. upon sudden 432 reasonable it that either must U.S., at 2329. cannot instructed at 97 And Patter- be S.Ct. it may accept accept son inference or prove reaffirmed that ‘a the State must by evidence the unless rebutted inference every ingredient beyond of an offense a the defendant. doubt, introduced and . . . not shift the may reasonable reject any ‘presumption’ must be free to the proof burden of to defendant’ means it believes is estab- or unless it Id., ‘inference’ of presumption. such a 97 at S.Ct. beyond a lished all the evidence from (footnotes at at 2330.” 99 2455-59 S.Ct. imposes a rule no doubt. Such reasonable omitted) (some emphasis added) (some cita- to introduce obligation on a defendant omitted). tions therefore, not, proof, constitu- any and is any Nor would I hold kind brief for the tionally defective. indulge of which would in the argument instruction fantasy brought that the under difficulties which “Most of these

challenge misleading jury- was not on emerged confusion the law from the argument supposedly such made on the be if we would overcome promise presumptions the instruction makes use of Mr. Frank- first Justice fully appreciated the “pre word “inference” rather than the law not does reason, observation which furter’s sumption” everyone —for utilizing common preclude States knowing that “inference” carries with it a sense, the firmly adhered to and then “presumption,” lesser connotation than case, that, criminal a propositions in a inherently know only that it was innocent, to be permissible presumed a upon inference they which can be overcome reason, presumption that such being were instructed. no There is beyond only by all material facts need, proof and attempt in fact no an elaborate doubt, infer- and that even on reasonable pres discourse the distinctions between facts, they ences before can fact, of material umptions,2 may which be of or of law must accepted by jury, be be estab- and which may be conclusive or rebuttable, beyond lished in the minds of the as mere deducible infer 227 at 222. reasonable doubt.” S.E.2d ences. As to law of one presumptions, it as court has referred to a semanticist’s any possible see Being unable to wholly nightmare. Pendry, S.E.2d held manner could be in which it court, (W.Va.1976). That placing considera jur- of a to the mind reasonable instruction Wilbur, 421 Mullaney ble reliance belief any or could other but produce (1975), S.Ct. L.Ed.2d animal, if de- possession of defendant’s and Winship, In re 397 U.S. the circumstance explain fendant not could ,2d (1970), stated, appli 25 L.Ed obliged away-which the defendant (as cable here reinforced Barnes and guilt, which an inference of do-raised Sandstrom): absent other evidence sufficient any “Because of the confusion in the entire I upon guilty, which to render a verdict presumptions, particularly law of in their touch defendant’s contention briefly upon evidentia- applicability procedural faulty is further instruction law, ry in the field of it that the problems leaving imply giving criminal unproven better to utilize in- fact may be ‘inferences’ assumes instruction in fact stolen-one provide that the had been ‘presumptions’ stead of animal Allen, require County trier of fact to 2. of Ulster v. 442 U.S. lows —but does Court —the proof by pros- discoursed infer fact from S.Ct. the elemental reality places length subject accepting ecutor one and that no on the of the basic any interchangeably: burden kind on the defendant.” Id. at that the words are used “The evidentiary entirely at 2224. most common is the device permissive presumption, al- inference which lead, away steal, take, carry, or drive crime with did elements of the of the essential brindle, with horns charged. one, which she was heifer cow ... Martin.” of Jeannine facet of the To consider this properly way whatever evidence case, easier to consider perhaps it that a establish tend to said to this is not. Where can be type of case which store is jewelry of the local committed front window in fact been larceny had criminal, who smashed an unidentified Jones, to the effect boy, Brady that of the silver, jewels and escapes displayed with the and been told that he had demonstrating problem there is no along- a cow boy “had discovered another larceny, has in jury burglary, that a and it loaded and had Road Ford Creek side is corpus fact been committed. The delicti truck.” pickup onto Owens’ cow readily pastured Where a established. notes, “The opinion As even this Court’s “be- disappears pasture from its owner’s law as lost to local reported animal October, 1974, and the tween the middle November.” early agencies enforcement 1975,” which is the sum February, end excerpt taken from point At this an knowledge of total of the involved owner’s inadequacy light on the brief sheds State’s place, the circumstances as to time and defendant, on the certainly proof is not the of the ready against there case of the delicti, e., corpus larceny, i. the fact of a No. 41: Instruction conception of State’s actually is with an observed there explain No. 41 does “Instruction might such as be so had a witness stealing, larceny, but crime of elements of the lights, seen a truck or in the pickup, sans on the Defend- instruction rather is an middle of night stealthily drive into an Apparently, of the case. theory ant’s pasture owner’s and load out a horse or Martin’s heif- and sell possess Owens did cow. pos- that Owens contended er. observable, As readily is the instruction it. heifer because she stole sessed the placed the prove burden the State to explana- an alternative Defendant offers pos- that “the animal found in defendant’s the heifer because possessed tion-Owens session was the same animal stolen in the payment pasturage. it accepted she larceny,” but this assumes the most critical larceny, the Once the State demonstrates crime, to-wit, posses- element of the needs to connect Owens feloniously sion of the animal was ever tak- guilt. Instruc- establish her stolen cow to place. en in the first should not possession 41 states that tion No. given being such an instruction on found connection. goods is a sufficient stolen in possession property of stolen unless the rightfully pre- instruction no. 41 Thus it clearly instructed that first must because ac- larceny occurred sumes proof have found that there was in fact pos- stolen instruction no. cording larceny that a of the animal had taken was, larceny oc- only if a place. given The instruction as as far session incriminates guilt as defendant’s or innocence was con- curred.” cerned, clearly bootstrapping proposition sound, entirely and should analysis This that de- which allowed to believe Any instruction lightly disregarded. not be her unsatisfactory explanation fendant’s admission, which, own tells a by the State’s

possession of another’s animal was at sufficiency (while on the it deliberates must proof same time both that the animal how she explanation as to of a defendant’s stolen, proof have been that she stole it. cow) possession of another’s came to charged that The information larceny has oc- “presume” it can did, set she within the time frame above curred, legitimate proof there is no where forth, intentionally, “wilfully, knowingly, should re- place, took larceny that a ever due feloniously, unlawfully, and without quickly be scrutiny, and ceive the closest crime of justification commit the cause or error. held to be reversible Larceny in that the said defendant Grand page A brief, later in the State’s so that house, es were taken from a railroad section there may be no doubt that the pas- above bake-house, and later found nearby at a sage was not a mere inadvertency, open, both suitcases having been cut State saying that Instruction No. 41 resem- three company paychecks taken. That bles the given instruction Bogris, State v. there larceny open had been a was not 144 P. 789 goes on to question. Testimony tended establish say: presume “Both property was sto- that Bogris six cashed the checks weeks len and both instruct the defendant’s Montana, Missoula, later forging the possession of property prima facie es- name payee. The instruction tablish the guilt.” defendant’s (Emphasis the trial court was that added.) Running squarely into Mullaney, tending was a circumstance Sandstrom, Barnes and the next sentence guilt.3 to show concedes that “prima such facie can be appeal On it was held that the instruction rebutted if the defendant offers an alterna- Sanford, was supported by supra, tive explanation.” possession “the rule of law that of recently In a following paragraph the State con- property is a circumstance from tinued its analysis of that which the jury which, unexplained, guilt when of the here being told the challenged in- may accused be inferred.” 8 Idaho at struction: 67 P. at 493. The Bogris wholly case is “Instruction presumes no. 41 a larceny compatible with early Idaho cases hold- occurred and instructs that the State’s ing possession of stolen property is a prima facie case is complete if Owens guilt circumstance from may which be in- explain cannot possession of the cow ferred, and the authority giving case is not stolen in the larceny. Instruction no. 41 license to a trial court to instruct further jury’s states the duty is to decide possession that such outright pre- raises a if the defendant’s explanation rebuts the sumption guilt, case, prima hence a facie State’s prima facie case.” telling at the same time the jury that it may presume larceny There that a in is more in has fact the same vein-all of which taken place in the should make it first instance. abundantly clear to the court the State itself on the appeal As to the evidence before the places the reading same upon the instruc- the State declares was support sufficient to tion which does the defendant herself. an instruction allowing to assume

The upon State, case relied by the occurred, that a taking felonious had there v. Bogris, supra, is demonstrative of the was testimony above-mentioned of the reasons for giving the instruction in boy, Brady Jones. At the trial of Mrs. question. Bogris, in factual pattern is simi- Owens on a charge that she had stolen a Barnes; lar to in both cases there horns, was no brindle heifer cow with boy’s question of establishing delicti, the corpus was, testimony anyone not that had stolen that a larceny had in place. fact taken cow, In such a or that cow had been both instances property stolen, stolen consisted of but that he had been told of the checks which were later cashed the re- appropriation cow, of a black which conver- spective Bogris defendants. two suitcas- sation supposedly place took when he had “ “ you connection, 3. ‘You are further you instructed that if ‘In be- this I further instruct beyond lieve from you the evidence a beyond reasonable that if find from the evidence property doubt that the described in the in- property reasonable doubt that the described formation was stolen and that the defendant posses- in the information was sion of the found possession was found in the defendant, determining then in stolen, is, possession after it was then such guilty you whether or not the defendant is law, strong, incriminating circumstance should take into consideration all of the cir- ” tending to show the of the defendant attending possession.’ cumstances such unless the evidence and the facts and circum- Idaho at 144 P. at 793. may stances thereunder show that he honestly come of the same. that. “Q You answer of 1975. her in the summer worked for is said to have established testimony which question. forgot I “A question brindle heifer stealing concerning said “Q anything Was is as follows: from? was taken where the animal Prosecuting Attorney) (By road and off the taken “A It was you worked “Q During ... that time I know. that’s all Owens, ever have occa- you for Mrs. did Jones, this time you are “Q Mr. her re- sion to have a conversation with Mrs. Owens? good terms garding a heifer cow? No, I’m not. “A Yes, “A I did. Jones, un- Mr. testified “Q you, Have occasions? previous oath on- der “Q present? Who was Yes, I have. “A Pederson and Mrs. Owens “A Richard truth? always told the “Q you Have myself. No, I haven’t. “A truth now? telling the “Q you Are recall, Now, “Q you as near as can I am.” “A Yes. what was said you would tell the you heifer? Just if regarding Jones, not the boy, Brady repeat words your perjury. own who admitted witness State’s jury? along with who “Tony” Hepburn, Margaret the witness at Dianne or a defense says

“A It was Rick to Jones had been de- this, not called something hearing, like can we trust him? was preliminary de- yeah, trial, I said I after And think Mrs. Owens but the State fense at sale, enough we trust him now and think can a bill placed in evidence fendant it was saying-I 25, 1974, one of them started think mixed breed to one August dated picked up brindle, they Mrs. Owens said that had white heifer, identified as red a black- faced, the and horned. On examination forth the statement prosecutor brought was document, signature, bearing her the Rick were “A said that her and She false, given she had not was and that and there’s a driving up Ford’s Creek payment described to defendant animal road. walking along black cow side the Nonetheless, bill. August pasture on the hearing, at which following preliminary Well, stopped they they “A said that on the the animal giving to she testified they up the truck backed it to the and five addition- bill, at least gave she pasture got put rope bank they out and description upon the touching al statements it they around this cow’s neck and led bill of sale. on the animal identified of the pickup into and I right up the back of the examination, declaring that after direct On give you any said didn’t it trouble or expla- only her spurious, was the bill sale no, they like that and said it anything had me she “told nation was that defendant they really they was tame and said that police and that the heifer raised Weippe, up to to Hueths and up took it her so bad and County harassed Clearwater have a calf and going it was to her so she lived harassed people where of it if get the calf out Dianne just feel it and she’d sold bad and she’d they took care of it. cross- bill of sale.” On if she had a better “Q concerning anything Was said that she witness admitted examination the the animal was taken from? where hearing, preliminary had testified Object ques- “MR. RAPAICH: was under that she had known that she leading. tion testimony oath, her other testified that given. truthfully “THE COURT: Overruled. court, course, appellate acts,

An probable consequences does not sit ural and of her pass judgment to upon credibility, and it telling jury and of that two admitted determine, for the to as best it perjurers speaking presumed were to be could, ly- whether two witnesses were truthfully testimony against in their her. ing when they they testified at trial that presumption of Defendant’s constitutional lying they had been when earlier testified innocence survive an hardly could under appellate oath. An court does have of the assumption of an essential element concerned, however, be with the very presump- charged, mandatory crime two integrity factfinding process, where tions, and the court’s instructive comment instructed, the jury was as was witnesses perjurious that two of the State’s presumed that: are speak “Witnesses truth. The presumed speak were truth, you should endeavor to reconcile trial to defendant did not receive the fair with the testimony presumption that entitled, constitutionally which all but are each speak witness intended to truthfully.” worse, far she has not been full and Admittedly, this instruction was not sin- fair consideration on appeal, where time gled objection by out for defense counsel at is not the element which it is at trial. The the instructions conference which immedi- court, course, trial oppor- had no second ately preceded instructing the jury and fi- tunity upon to reflect any of the constitu- nal summations. Be that may, as it tionally bad instructions other than the one principles same of law which compel should telling that the the Court to entertain and determine the animal raised an inference defendant’s principle equally applicable Sandstrom are guilt, sufficiently so as to convict her. here. Perhaps even more so. What a mis- Ironically, pains as I have been at great carriage justice for a court to direct a demonstrate, Trowbridge this Court in ex- indulge presumption that two cised the unconstitutional instruction. The witnesses, who may truthfully testifying evidence this case falls short of that they oath, previously lied under are Erwin, supra, where the convic- presumed speaking truthfully! to be tion was reversed. Without doubt The defendant in this case has been con- jury’s verdict applying flowed felony solely victed of a as a result of the faulty instructions. trial telling court the jury that it could larceny assume a in fact had been commit-

ted, of telling jury that defendant’s

possession of the animal assumed to have

been stolen raised an inference of

and was in and of itself justify sufficient to verdict,

a guilty of telling that the presumed to intend the nat-

Case Details

Case Name: State v. Owens

Court Name: Idaho Supreme Court

Date Published: Nov 18, 1980

Citation: 619 P.2d 787

Docket Number: 12272

Court Abbreviation: Idaho