*1 [43 State Pate. v. Decided. Points utility a and under Appellant being public free. service Commission, the com- jurisdiction Public Utilities hearing ordered before it and upon its rates mission fixed Ap- respondent longer free service. no be furnished billed respondent order and pellant gave notice this to through supplied its for water him it did other users as service, Respondent for the and system. pay refused to fact has received that he urges by reason acquired thereby many years, he gratuitously for service user. This con- right water adverse use of the right in- A neither be water can tenable. tention is not distributing user from acquired adverse nor itiated (1 corporation. Jur. Cal. service system public of a system in right and admits that Respondent no claims appellant. in ownership rest While thereto title nothing facts he has more under the right, claims water upon compliance, common with all right service than a regulations promulgated by rules users, with the other provisions Under the Commission. Public Utilities user, favor one S., discrimination sec. C. prohibited. users, is other against that the should be majority I concur modified.
(February Appellant. PATE, PAUL Respondent, v. STATE, Pac. 623.] Recently Property — — Burglary Stolen Evidence Possession Insufficient. prosecution for held insufficient 1. Evidence with the crime. failing to connect 2-, entry proved, breaking and state show de- Where property as unexplained recently stolen possession of fendant’s Respondent.
Argument burglary, proof but sueh does tending liim with to connect being merely from which presumption guilt; raise may convict. *2 Eleventh Ju- tbe APPEAL from Court of tbe District A. County. Hon. William District, Falls dicial for Twin Judge. Babcock, degree, burglary in the first
Defendant was convicted of appeals* md remanded. Reversed Hackman, Appellant. Turner K. for defendant, pronouncing judgment The erred in on court intro- for reason was not sufficient evidence there (State during duced the trial to warrant his conviction. 68, 902, 647; 199 Sullivan, v. 34 17 L. Pac. State Ida. A. R. Blank, 61 33 Seymour, 257, v. 7 Pac. State 1033; Ida. v. Ida. 197 730, Pac. General, Conner, Attorney Cramer,
A. H. and John W. Attorney General, Respondent. Assistant general specification A of error to the effect that the evi- verdict, is insufficient reciting dence to sustain the without particulars alleged in which the insufficiency consists, requirements comply S., 9068; does of C. see. general specification error and under such the court will review in the the evidence record to determine whether (State of not it is sufficient to sustain the verdict. v. John- son, 440, 1052; Sayko, 39 227 430, Ida. Pac. State v. 37 Ida. 1036; Maguire, 216 31 24, 175; Pac. State v. Ida. 169 Pac. Snook, 34 Ida. 210 403, Pac. State Publisher’s Note. Possession, property 2. stolen burglary, see A., S., 1281; in 19 Cas.
[1] The record discloses the *3 following facts: A police officer, morning January 2:30 or 3 o’clock on about the 28, 1925, empty saw an automobile across the street from building the Rule in Twin Falls. From Golden Store a block, young he run distance half a saw a across fellow building the to the ear. street from store The officer the stepped person out into street better observe the running car, young another fellow toward and saw run Golden Rule to the out of the door of the Store car. side carrying “dry goods.” seen, men were When first both occupants escaped being car and its without moved off investigation by Later the officer. showed identified that panel leading in a door been a hole cut from had building by means furnace-room of of which access gained lock on door. outside door lead to the was fastened. When was not the stock ing to the furnace-room boxes had examined, it was found that shoe been taken was particularly a removed, vest, leather down and merchandise shirts and socks. underwear, 651 Varian, Commissioner. of the Court — February- midnight on Louis Kemble was about arrested wearing in 21, 1925, a leather admitted pro- testified that he trial he state’s exhibit “B.” theAt 10:30 or 11 o’clock cured the about vest from defendant that date paying him therefor check evening, that The check is in payable $3.50, order of defendant. police, by the defendant evidence, confronted and when receiving indorsing denied that it was it, but admitted given evidence, asserting that payment for the vest represented The vest was delivered to check loan. a slept. where he Kemble defendant’s room at Achenbach, repair-shop roomed over Moore’s One who roomed, also defendant testified Falls, in Twin where the room at o’clock the after- defendant was January 27th, evening during which noon until 7:30 the including others, defendant, had four or five he and they all left the room. supper, which Achenbach re- after midnight, go but did not to bed after o’clock turned January morning of 6 o’clock the 28th. De- until about with rooms one Delmer Achenbaeh’s Hines came to fendant morning. once, Hines went to bed at 5:25 that at 4:25 or shortly thereafter. Defendant told and the night Eden at dance the he was at officers that Twin returned to Falls January 27th, he about mid- joint, and went to at a noodle bed supper about night, had morning. next 1 o’clock the arrested, wearing of underwear he was a suit
When purchased He police. said he had him from taken from clerk at Filer store named Wood’s Curtis. from it carry that store did underwear of that appears that It testified did not sell positively this under- kind. Curtis *4 the court refused defendant, to admit it wear evidence. department charge men’s of the having of clerk
The he that observed the testified Rule Store condition Golden in the store on evening vests of leather of stock thirty were about leather 1925; there vests January 27, that Varían, of the eight comprising varieties; or nine that at that there time style “B,” were two vests of same as the state’s exhibit sport-style originally suede leather vest. There had been stock, four in employee one of which to an of the was sold store, it, lady who still had and one sold to a school-teacher. That was size evidence is size so one they morning could be the same. 28th of the January up he cheeked and there was but one leather vest style remaining the same the one evidence in the sold, stock. had except None been as mentioned herein. On direct positively, examination this witness testified “That missing is one of the leather vests from the store morning.” qualified next On cross-examination he testimony Engelman as follows: “The Company, Yan or system, Golden Store Rule had several stores in that sec- tion; say they keep could not that did not the same vest in stock stores; in the other don’t know.” In answer to a further question, “Well, he I say answered: couldn’t purchased whether it been from had another store or not. It has no mark it on as to that.” It is obvious from a reading testimony careful that the witness could not identify positively. the vest It merely like the one missing from the store. possession this leather only vest evidence charged. tends to connect the crime
The fact that a was committed is clearly estab- lished, but the fails to sufficiently connect the de- regard fendant with it. His false statement selling fact that returned to his room shortly after the robbery, go and did to bed at 1 o’clock as testified, may prompted by have been a consciousness wrongdoing. He acquired have may wrongfully by theft, robbery the vest person another; burglarizing from another store time; at different or it have into possession come burglarize from one who did question, store in or who elsewhere, acquired had with knowledge, stolen it after that might fact, be a property. it was There con- *5 Varían, the of actions, guilt of these instances. His sciousness all of necessarily identification assist therefore, do charged. prove particular guilt of the crime nor [2] Where the breaking and entry is proved, as property sufficiently as stated at case, “if is identified breaking,” may unex show the time of the state tending property as plained possession recently (9 burglary. C. J. to connect the defendant with the guilt as a proof presumption Such “does raise a legal merely presumption, is law, matter but (9 from which the convict.” C. J. n assignments error been considered other have with connect defendant than the no error other failure appears- from record. the crime , judgment reversed, be It is recommended that the grant new trial. with instructions to remanded cause C., Brinck, concurs. approved foregoing opinion court, is reversed, and the cause remanded with grant a trial.
instructions new Lee, Bailey Lee, JJ., Wm. T. J.,C. and Givens and E. concur. notes Ann. 12 L. R. N. See, 199. also, 4 R. C. Xi. 440. J., Burglary, 127, p. 1070, 75, See C. p. 1071, 76, 77; sec. n. n. 132, p. 1076, 26; 146, p. sec. n. see. n. 80. v. Varian, of tlie appears burglary Where it committed, that a was in fact possession property by recently the accused is a which, circumstance from connection with all presume, evidence, fact, matter as a (Underhill’s he committed Evidence, ed., it. Crim. sec. 3d 573.). VARIAN, Commissioner. Defendant was convicted degree appeals crime of first from the an denying motion for a new trial. order twenty- charges that on or information about day January, seventh about 3 o’clock A. ofM. wilfully, day, wrongfully, said defendant did felo- burglariously niously and a certain -in Twin enter store Falls, described, larceny. therein with intent commit defendant offered evidence and the cause submitted no upon the state’s evidence alone.