241 S.W. 934 | Mo. | 1922
Lead Opinion
The defendant was convicted of grand larceny and sentenced for two years' imprisonment in the penitentiary, and appealed. The charge is that he stole a tarpaulin, of the value of fifty dollars, the property of J.C. Williamson.
Williamson testified that he lived in Vernon County, near the north line of the county; that he used the tarpaulin in the year 1919, put it in his machine shed on January 15, 1920, and on January 28, it was gone; that it had a mouse hole in it; two or three holes in it at the time of the trial; that defendant lived across the line in Bates County; that he saw him on witness's premises several times trapping and hunting; that he was told on February 22, 1920, that the tarpaulin was in defendant's house; sued out a search warrant and found it there on that day; that it was reasonably worth $50 at the time it was stolen. When the constable read the warrant to the defendant, Swarens said, "I have something of that kind here. I don't know whose it is." He further said he had found it on his place ten or twelve days before that.
The defendant testified that about February 12, 1920, he went to the south part of his farm to get a load of fodder and found the tarpaulin behind a bunch of brush in the corner of his pasture, it having been thrown over the fence ten to twenty feet; that he put it in his wagon, took it home and put it in the front room to take care of it and keep it safe from mice; that he was taken sick the next day and was confined to the house about ten days; that his family was also taken sick, and that he had no telephone in the house. Two of his neighbors called on him on Sunday, February 22. They saw the tarpaulin, but nothing was said about it. They had heard that Williamson had lost his tarpaulin and reported they had seen it in defendant's house, and no time was lost in procuring the warrant. *144
The defendant denied taking the tarpaulin from Williamson's shed and denied knowing it belonged to him.
The court, in an instruction not numbered, instructed the jury, in substance, that if they found the defendant feloniously took, stole and carried away the tarpaulin from the possession of Williamson, with intent, etc., that it was his property and of the value of $30 or more, then they should find the defendant guilty of grand larceny and assess his punishment at, etc.
By Instruction 1 they were told that if they found the tarpaulin was the property of Williamson and that it was stolen in Vernon County on or about the __ day of January, 1920, and that recently after it was stolen it was found in the exclusive possession of the defendant, then he is presumed to be the thief, and the burden is on him to overcome such presumption, and unless such possession is satisfactorily accounted for in a manner consistent with the innocence of the defendant by evidence in the case or the circumstances attending such possession, or by the habits and manner of life of the defendant, or unless such presumption is rebutted by evidence showing the good character of the defendant or by evidence that he was at some other placewhen said property was stolen, or by the weight of all the evidence, they should find the defendant guilty as charged in the information.
I. Instruction 1, in the use of the words we have italicized, assumes that the property was stolen. A finding that the tarpaulin was stolen was necessary to conviction, for it is possession of stolen property that raises theAssumption of presumption of guilt. [State v. Sasseen, 75 Mo.Disputed Fact. App. 197, 203; 25 Cyc. 132.]
II. This instruction reads, in part: "or unless such presumption is rebutted by evidence showing the good character of the defendant or by evidence that he was at some other place when said property was stolen, or by *145 the weight of all the evidence," etc. The words we have italicized put an undue burden on the defendant.Placing Undue Where there is no evidence of the defendant's goodBurden Upon character, the rule in this State is that theDefendant. defendant's explanation of his possession should be such as reasonably to satisfy the jury that it was innocently or honestly acquired. [State v. Moore,
III. Another vice in this instruction is that it purports to cover the whole case and authorizes a conviction of grand larceny without a finding that the tarpaulin was of the value of thirty dollars or more. That was an issue in the case. The two instructions are therefore in conflict, and theConflicting jury would not know which to adopt as their guideInstructions. in arriving at their verdict. [State v. Herrell,
There are other interesting questions discussed in the briefs of learned counsel, which need not be considered. The judgment is reversed and the cause remanded. James T. Blair, C.J., concurs in separate opinion in which Woodson, Graves, David E. Blair and Elder, JJ., concur; Graves, J., concurs in separate opinion in which Woodson and David E. Blair, JJ., concur;David E. Blair, J., concurs in separate opinion in the second paragraph, of which James T. Blair, C.J., concurs; Walker,J., dissents in separate opinion.
Concurrence Opinion
I. Instruction 1, summarized in the opinion of HIGBEE, J., contains *146
about the usual formula employed in this State, with the approval of this court, respecting the effect of the appearance in a larceny case of a showing that the accused was found in the exclusive possession of recently stolen property.Presumption The soundness of the doctrine of this court whichArising From authorizes instructions of the kind is open to thePossession. gravest doubt. The rule now in force is well illustrated in State v. Kelly,
"On the one hand, the law presumes in this, as in all other criminal trials, that the defendants are innocent of the crime charged against them, and allows this presumption to continue until overcome by evidence which proves their guilt; and on the other hand, where property has been stolen, and recently thereafter the same property, or any part thereof, is found in the possession of another, such person is presumed to be the thief, and if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him."
Properly to understand this instruction and its real effect the words "beyond a reasonable doubt" must be supplied in sense after the words "prove their guilt" at the end of the first clause. Numerous subsequent decisions have followed this decision and approved instructions of like character. The holding is squarely in conflict with nearly all the authorities and decisions. The error resides in treating the inference from recent, exclusive and unexplained possession of stolen property as a presumption of law. It is not so, as is demonstrated from a consideration of the instruction given in the instant case. [See State v. Hodge,
"1. The Just Doctrine of this sub-title is believed to be that, when the fact of a theft has been shown, and *147 the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case; among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on its being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror's opinion; and —
"2. The Greater Number of the Cases, especially the more recent ones, considered in connection with the familiar proposition that the law is a system as well of reason as of authority, expressed in not quite uniform terms and varying more or less in their outward forms, sustain the doctrine thus stated.
"3. The Leading Later Cases, covering a dozen years or more, are, for the convenience of the practitioner, considering that the doctrine in some of our states is not now the same as in earlier years, here in a note inserted in the alphabetical order of the states, without reference to what aspect of the question they sustain. It will be comforting to the well-wishers of our jurisprudence, who examine these cases, and who remember the condition of the law on this subject fifty years ago, to note that very little now remains in our reports, of unfortunate old doctrines which have melted before inflowing light. Among the views now exploded, —
"Sec. 741. Prima-Facie Case — Burden Shifting — Formerly it was often laid down that when the corpus delicti has been proved, if the stolen goods are shown to have been in the possession of the defendant after — or recently after — the theft, the burden of proof reverts to the defendant to explain the possession, failing which he must be convicted. Discordant and indistinct views were expressed as to whether the presumption was of *148 law or of fact. Later and more enlightened opinions discard this doctrine, in whatever form presented.
"Sec. 742. The Possession Must Be Recent to have the effect we are considering. And all deem that the presumption diminishes in force with the increase of time between the larceny and it. The just doctrine would seem to be that if the possession is very remote, yet how remote must depend on the special facts of the case, the judge in his discretion will exclude it as having no sufficient tendency to prove anything; but when he admits it, he should leave it to the jury with proper suggestions. Judges who admitted it have dealt with it by no uniform rule. When it stood nearly or quite alone in the identifying evidence, and was plainly under the circumstances too remote to found a verdict of conviction upon — as, for example, six months, or even three months — sometimes an acquittal has been ordered. Evidently no rule is reasonably possible.
"Sec. 743. 1. The Doctrine that the Burden Shifts from the State to the defendant is contrary to the true view that, in criminal trials upon the general issue of not guilty, such burden never shifts.
"2. The Source of the Old Doctrine, by which a rule of law, and not the opinion of the jury upon the evidence, convicted defendants of the criminal fact, may not be quite plain; but some references in text-books would seem to trace it to Lord HALE. `If,' he says, in the passage referred to, `a horse be stolen from A, and the same day B be found upon him, it is a strong presumption that B stole him. Yet I do remember, before a very learned and wary judge, in such an instance, B was condemned and executed at Oxford assizes; and yet, within two assizes after, C, being apprehended for another robbery and convicted, upon his judgment and execution confessed he was the man that stole the horse, and being closely pursued desired B, a stranger, to walk his horse for him while he turned aside for a necessary occasion, and escaped; and B was apprehended with the horse and died innocently.' Surely nothing further need *149 be said to satisfy the present generation that it is fully time for such barbarous folly to cease.'"
Mr. Wharton, 2 Criminal Evidence (10 Ed.) sec. 758, gives his views:
"Sec. 758. Inferences from Possession of Stolen Goods. — When we take up the presumption arising from the possession of stolen goods, we have again to deplore the looseness of phraseology which assigns one term, `presumption,' to processes so very different as fictions, presumptions of law, and inferences. Of the confusion which thus arises, the `presumption' now before us is the most striking illustration. It is really an inference of fact; but frequently, from the notion that inferences and presumptions of law are convertible, it has been declared to be a presumption of law. But the difference will at once be seen by recurring to the distinct processes of reasoning which are thus invoked. The presumption of law, granting its minor premise, establishes a certainty. It says, for instance: `All persons under seven years are presumed incapable of crime. A is under seven years; he is therefore incapable of crime.' If A is under seven years, then the conclusion is a certainty, and the jury must be directed so to find. This, in fact, is deductive reasoning, in which the major premise is matter of law, and in which all that remains to the jury is to find as to the truth of the minor premise. But in inferences such as those immediately before us, the process is inductive, and neither major nor minor premise is matter of law. Thus, in the case of the inference from receiving stolen property, the reasoning is as follows:
"`The proportion of guilty persons holding stolen goods to innocent is two to one: A holds stolen goods; therefore the probability of his guilt is two to one.' Now, as to this process, it is to be remarked: 1. That the major premise is a statement which is of no value unless it is based upon a large observation of facts; 2, that the conclusion is only a probability; and, 3, that no case arises in which the question comes up pure and simple, for in all cases the fact of possession is mixed with some other qualifying fact or inference. *150
"Taking up, then, the point immediately before us, we may say that a court may properly tell the jury that the possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred. But the possession must be personal; must be recent; must be unexplained; and must involve a distinct and conscious assertion of property by the defendant. If the explanation involves a falsely disputed identity or other fabricated evidence, the inference increases in strength; and so where the goods are part of a mass of stolen property, and where the case is that of a forged instrument held by one claiming under it. But in any view the question is one of fact."
In the Kelly Case this court seems to have thought that the Court of Appeals (State v. Kelly,
The Kelly Case and all that have followed it, or the rule it announces, are wrong, and the court should say so in no uncertain terms. That there is no such presumption as held in that case is made too clear by the authorities quoted and cited to require further discussion. The jury should be allowed to try the facts. The great number of erroneous decisions in this State, largely begot by State v. Kelly, is no reason for hesitation in adopting *155 the correct rule. It is quite probable that in most cases no actual harm has resulted. It is obvious that in some cases injustice may be worked by the present rule. We should no longer direct trial judges to substitute themselves for the jury on important issues of fact in cases of this kind. That is what this court has been doing. The apology for the number of citations is that the error in question has become so thoroughly imbedded in our jurisprudence that the temptation to use all the fit material at hand in an effort to blast it out is too great to be resisted.
II. An examination of the decisions cited in the preceding paragraph discloses that the practice with respect to the matter of instructing the jury concerning the effect of evidence of recent and exclusive possession of stolen property, is not at all uniform. Issues of fact are to be tried by the jury. [Sec. 4005, R.S. 1919.] It is the trial court's province to determine whether there is substantial evidence tending to proveJury Question: the charge (State v. Stevens, 242 Mo. l.c. 442),Comment on but it is the province of the jury to weigh theEvidence. evidence and determine whether it proves the charge beyond a reasonable doubt. [State v. Cannon, 232 Mo. l.c. 215.] It is the function of counsel to argue the case. While the trial court may set aside a verdict of conviction if he believes it to be opposed to the weight of the evidence, it is quite improper for him to give the trial jury, in any manner, his views of the weight of the evidence. He should not comment on the evidence, either in instructions or otherwise. If, under applicable rules, there is substantial evidence that property has been stolen, it is the business of the jury to say whether they believe this evidence and whether it engenders the requisite degree of belief in their minds. If there is substantial evidence of defendant's criminal agency, whether that evidence be evidence of recent and exclusive possession of stolen property or evidence of some other character, it is still the duty of *156 the jury, and of the jury alone, to weigh the evidence and, for themselves, respond to the question whether this evidence convinces them beyond a reasonable doubt. The trial court ought not to argue the question, either directly or by comment in instructions which, directly or by implication, gives the jury his view of the weight of the evidence. The evidence on such a question should go to the jury like that on any other. Counsel may argue the facts and the inferences to be drawn therefrom. The jury can give such facts the weight they think they deserve and draw the inferences they believe ought to be drawn. This is peculiarly their duty. [State ex rel. v. Ellison, 268 Mo. l.c. 256, 257.] With respect to an issue of the kind in question it is as much the trial court's duty strictly to confine his instructions to the law as it is in any other matter or issue.
III. In view of what is said in paragraph I, anCircumstantial instruction on circumstantial evidence would haveEvidence. been proper on the trial of this case.
For the reasons given I concur in reversing the judgment and remanding the case for further proceedings. Woodson, Graves,David E. Blair and Elder, JJ., concur.
Concurrence Opinion
I. I concur in the result of the majority opinion in this case. In my judgment the case before us is one of circumstantial evidence. The question to be determined by the jury in the case was, did the defendant steal, take and carry away the property of the prosecuting witness? No eye saw him do it. The facts shown (1) that Williamson owned the tarpaulin and (2)Circumstantial that it was taken from his place, without hisEvidence: consent, might be circumstances tending to show aPresumption. theft of the article by some one, but are not direct proof of a theft by defendant. So too, possession of recently stolen property may be a circumstance tending to show that the defendant was guilty of the theft, but it *157 is not direct evidence of the theft. One cannot read the collated case-law upon the subject without reaching the conclusion that this case is one of circumstantial evidence. The fact that our Missouri law makes the circumstance of possession presumptive evidence of guilt, does not change the situation. On this question our State stands practically alone, and our holdings are wrong in principle. It is at most simply a presumption based upon circumstantial evidence.
In the notes on the case of State v. Overson, 30 Utah, 22, in 8 Ann. Cases, 798, it is said: "Recent possession of stolen property is not positive evidence of theft. It is but a circumstance tending to establish it. . . . Hence when possession is relied upon to establish inferentially a taking of the property, it is a case of circumstantial evidence, and the trial court should charge on the law relating thereto." The annotator cites a long list of cases, which might be read with profit.
In the notes to Beason v. State (Texas), 69 L.R.A. l.c. 198, it is said:
"The finding of property that has been stolen in the possession of the accused, which possession he does not satisfactorily excuse, explain or account for, or does so untruthfully, has been held to be prima-facie evidence that he committed the larceny; but the single possession of such property, shown in the accused, is only a circumstance tending to prove his guilt, and which, without any positive proof as to the taking, renders the case one wholly depending upon circumstantial evidence, and a failure of the court to charge upon the subject is error; and the cases in this subdivision are those which, under varying circumstances, point out this rule."
The long list of cases cited and analyzed bear out the foregoing excerpt from the language of the annotator. I have found two or three cases which hold that when the defendant goes on the stand and admits the possession, and tries to explain it, then the case is not one of circumstantial evidence alone. The great weight of the cases are the other way. The reason is the other *158 way. The mere admission of possession is not different from proof of possession. If the defendant does not go upon the witness stand, and the State proves his possession, it is a circumstance showing guilt, and under our law raises a presumption of guilt. His admission of possession does not make the possession anything more than a circumstance tending to show the theft. In my judgment the present case was one of purely circumstantial evidence, and under the law the trial court was compelled to give an instruction upon circumstantial evidence, and this was not done. This failure was error.
II. I do not agree to the proposition that the failure of the court to instruct upon circumstantial evidence is not here for review. I fully agree with the sound and exhaustive opinion of KENNISH, J., in State v. Conway, 241 Mo. l.c. 283, et seq. I commended him at the time for putting his divisionInstruction of the court aright upon a question that had beenNecessary. fearfully mooted in the then later cases. I regretted to see the court thereafter depart in a way from the Conway Case. Such departure has wiped out the statute, which the Conway Case gave a righteous effect. I shall not re-argue the question, because it is ably argued in Conway's Case. That case should be the law, and is the reason of the thing. At least, I shall not concur in a repeal of the fourth sub-division of the statute (now Sec. 4025, R.S. 1919) by court decision. Woodson and David E. Blair, JJ., concur in these views.
Concurrence Opinion
I. I concur in the result reached in the opinion of HIGBEE, J., and also concur in the separate concurring opinions of BLAIR, C.J., and GRAVES, J. For many years this court has adhered to the rule that unexplained possession of recently stolen property raises a presumption of law that the possessor is the thief. In so doing we have been out of harmony with thePresumption: overwhelming weight of authority as found inStare Decisis. *159 the well-reasoned decisions of practically all of the other states. The fact that we have followed the rule for so many years and that such rule has become thoroughly embedded in the decisions of the court during all those years is in my judgment no reason why we should continue to follow an unsound rule and one that has doubtless permitted injustice to be done in some cases.
II. An instruction telling the jury that one in possession of property recently after it is stolen is presumed to be the thief thereof, unless he satisfactorily explains such possession, is also improper, for the reason that it is a comment on the evidence. Since we have abandoned the rule thatPresumption: unexplained possession of recently stolen propertyComment on raises a presumption of law that the possessor isEvidence. the thief, the trial court should not give any instruction whatever in relation to the conclusions or inferences which may be drawn by the jury from the fact of possession of recently stolen property. The fact of such possession should be left to the argument of counsel in connection with other facts shown by the evidence and such fact should not be singled out by the court or unduly commented upon in the instructions.
III. I am unable to concur in paragraph one of the opinion of HIGBEE, J., wherein he condemns Instruction 1 in the instant case, on the ground that it assumes that the property was stolen. The jury were first required to find that the property was stolen, and, having once been required to find thatAssumption fact, the reference to the property thereafter in theof Fact. instruction as stolen property did not amount to the assumption that the property was stolen. [State v. Richardson, 228 S.W. 789; State v. Bickel, 177 S.W. 310.] In 16 Corpus Juris, 950, it is said: "Although part of a charge may be open to the objection that it assumes a fact in issue, this error will be cured when the charge taken as a whole overcomes the objection." *160
IV. I think the judgment in this case should be reversed and remanded for the additional reason that the trial court failed to instruct upon circumstantial evidence and that the point is sufficiently saved by being called to the attention of the trial court for the first time in appellant's motionCircumstantial for new trial, as pointed out in the separateEvidence. concurring opinion of GRAVES, J., in which I fully concur. James T. Blair, C.J., concurs in Paragraph II herein.
Dissenting Opinion
The matter here in controversy is the legal propriety of an instruction given by the trial court at the request of the State. That instruction, numbered 2, is as follows:
"The court instructs the jury that if you find and believe from the evidence that the property mentioned in the information, to-wit, one twelve ounce duck canvas tarpaulin, twenty-four feet wide by thirty feet long, was the property of J.C. Williamson and that it was stolen in said County of Vernon in theInstruction State of Missouri, on or about the ____ day ofGiven. January, 1920, and that recently after it was stolen the same was found in the exclusive possession of the defendant, William Swarens, then he is presumed to be the thief and the burden is upon him to overcome such presumption, and unless such possession is satisfactorily accounted for in a manner consistent with the innocence of the defendant by evidence in the case, or the circumstances attending such possession, or by the habits and manner of life of the defendant, or unless such presumption is rebutted by evidence showing the good character of the defendant, or by evidence that he was at some other place when said property was stolen, or by the weight of all the evidence before you, you should find the defendant guilty, as charged in the information." *161
I. The correctness of this instruction from various angles is discussed and questioned in the majority opinion and in the opinions of two of my associates. I differ with them in both their reasoning and conclusions; and I will endeavor to demonstrate, as briefly as the subject will permit, theStare reasons for my difference. Neither in its letter norDecisis. its context is the instruction subject to tenable objections. As prefatory to more substantial reasons, something might be said of the time-honored presence of this instruction in our jurisprudence since the rendering of the opinion in State v. Floyd,
It is contended in the majority opinion that the instruction assumes the commission of the crime in using the words "after it was stolen." This phrase must necessarily be construed in connection with what precedes it. In the beginning of this instruction, the jury is expressly told that "they must find and believe from the evidence" as a conditionAssumption of precedent to a verdict of guilty that theDisputed Fact. tarpaulin was stolen. Thus directed, there is no reasonable ground for even the lay mind, however unfamiliar it may be with the rules of interpretation, to understand that the subsequent words "after it was stolen" are not meant to assume the commission of the theft, but that such words are to be construed in connection with and subordinate to the finding necessary to be made by the jury before they can find that the crime was committed. *162
The general rule in regard to the manner in which instructions are to be construed is not inappropriate in this connection, viz: that a clause in an instruction is not to be held erroneous unless it is so after reading it in connection with the balance of the instruction of which it forms a part. [Andrew v. Linebaugh,
Like reasoning will apply to the futility of the further contention in the majority opinion as to the use of the words "when said property was stolen" in stating the defendant's right to the proof of an alibi in rebuttal of the presumption of guilt arising from the possession of the property recently after it was alleged to have been stolen. Nor is there merit in the contention that there was error in the use of the words "by the weight of all of the evidence" in defining the quantum of proof necessary to a finding of guilty. What constituted the weight of the evidence, as the phrase was here used, was correctly defined in other instructions, and the jury was not left in doubt as to what was meant. These other instructions were in regard to the question of reasonable doubt and the weight and value to be given the testimony, which were in the stereotype forms often approved by this court. Thus instructed, the jury could not have been misled as to what constituted the weight of the testimony. No undue burden having been placed on the defendant by the use of the words in question, he has no ground of complaint in this regard.
The contention that the instruction is erroneous in not stating the statutory value necessary to constitute grand larceny is based on the theory that the instruction is drawn to cover the entire case and hence it should include all evidentiary facts. If the same rule be applied in criminal cases that hasCovering sometimes found application in civil cases as toEntire Case. the requirements of instructions so drawn as to cover the entire case, it would not be applicable in this instance. The instruction does not purport to cover the *163 entire case. The description of the property therein is simply preliminary to a statement of the probative force of the presumption arising from the recent possession of stolen property. Neither this description nor the authority given the jury to return a verdict of guilty upon a failure of the defendant to rebut the presumption can be construed to cover the entire case.
The instruction which more nearly covers the entire case, under the theory of the majority opinion, is that numbered 1, which states, among other essentials, that the jury must find that the property was of the value of thirty dollars or more to authorize a verdict of guilty. This constituted a sufficient statement of the value of the property under the well-established rule that the instructions are to be considered as a whole, and when so considered, if they consistently and correctly declare the law applicable to the case under the evidence, they are not obnoxious to criticism. All that a defendant can require is that his case be fairly and fully presented. When so presented no objection thereto should be sustained. When a case is thus submitted, it is beside the mark to contend that error has been committed in submitting the issues in several rather than one instruction. [State v. Burgess, 193 S.W. (Mo.) 821; State v. Murray, 193 S.W. (Mo.) 830; State v. Arnett, 210 S.W. (Mo.) 82; State v. Reppley,
II. As to the concurring opinion of Chief Justice BLAIR concerning the propriety of the instruction that a court is not authorized in telling a jury that the *164
recent unexplained possession of stolen property will warrant a presumption of guilt, but that such possession should be considered as any other evidentiary fact freed fromPresumption any presumption. Whether the presumption be one ofArising from law or fact, technically considered, is not soPossession: material as is the question whether the language ofExplanation. the instruction is not such as to cause the court to usurp the functions of the jury. If we seek light in the deductions of text-writers rather than in the actual rulings of the courts, we find in learned treatises on evidence and on presumptions that the line of demarcation between the different species of presumptions has not been observed with precision. The same presumptions are spoken of by judges sometimes as of law and at other times as of fact; sometimes as presumptions juries are advised to make, and at other times as being obligatory upon them to make. [2 Best, Ev. par. 323; Best, Presump, 47 L.L. par. 37.] In discussing the principle involved in the foregoing from Best on Evidence, the Supreme Court of Iowa says, in effect, that: "The recent unexplained possession of stolen property tends to establish the guilt of the person in whose possession it is found, and will authorize conviction, unless the inference of guilt is overcome by other facts tending to establish the innocence of the accused. This presumption may be overcome by testimony establishing facts inconsistent with guilt. Good character may be sufficient in some cases to overcome the presumption. The law holds that the presumption in question, unless overcome, will authorize conviction. It is a presumption recognized by the law, and may, therefore, be termed a presumption of law. The term presumption of fact implies that from certain facts the law will raise a presumption. Either of these terms, presumption of law or presumption of fact, may be used to express the same thought, for they are identical in meaning. See State v. Richart,
In State v. Garvin,
Citing with approval Lee v. Pearce, the Supreme Court of North Carolina in State v. Graves,
In Johnson v. State,
In Territory v. Casio,
The rule announced by the Supreme Court of Delaware in State v. Carr, 57 A. 370, is that where property recently stolen is found in the possession of a person, the rule of law is that such person is presumed to be the thief unless he accounts satisfactorily to the jury for his possession.
The rule that has been adhered to in Missouri for at least three-quarters of a century, which is in harmony with the cases above cited, is in our opinion correctly declared in the instruction under review. Under the rule as there applied, whether the presumption be one of law or fact, or conclusive or disputable, its probative force must depend upon the circumstances surrounding each particular case. Whatever these particular circumstances may be in any given case, proof that the property has been stolen is a prerequisite to the right to the presumption; further than this, as in the instruction here, the right of the jury to entertain the presumption is "cribbed, cabined and confined" by a number of limitations, either of which if deemed satisfactory by the jury will entirely dissipate the force of the presumption. Among these are an accounting for the possession in a manner consistent with innocence, which may include proof of the habits and manner of life of the accused, the conditions under which the property was acquired, the good character of the possessor, proof of an alibi, or that the weight of the evidence was against the otherwise authorized presumption. In the face of these limitations there is little room left for the contention that the usual presumption of innocence is removed or that the burden of proof is shifted to the defendant. Let it be granted, however, that the giving of the instruction may afford technical ground upon which to base these contentions, it furnishes nothing more. In its practical application it simply tells the jury that they may entertain a presumption that naturally arises in the normal mind upon its being shown that property recently stolen has been found in the exclusive possession of a defendant. If the jury were thus instructed without more some basis *168 might be found for the contentions as to the removal of the presumption of innocence and a shifting of the burden of proof. With the limitations stated, however, there can exist no reasonable possibility for the defendant to be deprived of any defense to which he is entitled under the law.
Without lessening the force of the reasoning in favor of the integrity and perpetuity of the rule as to the probative force of the presumption in cases of the character here under review, it may be conceded that this rule is not in accord with the trend of decisions in other jurisdictions. While harmony in judicial rulings may, in the main, be regarded as a desideratum promotive of justice, the maxim loses its force when the reason for its existence ceases. That reason finds its only sure foundation in the fact that where the rulings on a given subject are uniform in their character the administration of the law will be rendered more effective and less opportunities will be afforded for unjust decisions. Where, however, a difference in ruling does not produce this effect, an attempt to harmonize them simply for the sake of a maxim can work no practical good. It is not, therefore, in a reactionary but a genuinely conservative spirit, prompted by a desire to further, so far as possible, the effective administration of the law, more specifically that of larceny, that this protest is entered against the proposed overruling of scores of Missouri cases on this subject.
III. I differ with my associate Judge GRAVES in regard to the right of the defendant to an instruction on circumstantial evidence. The rule that a defendant may only demand as a matter of right the giving of this instruction, in the absence of any other than circumstantial evidence, should, uponCircumstantial a review of the facts, prove a sufficient answerEvidence to the contention of my learned brother. There was proof of asportation, one of the essentials of the crime; this was direct in that the possession of the tarpaulin was as a physical fact found in the possession of the *169 defendant. This finding, speaking as it does more emphatically than oral testimony, should not be construed as circumstantial. If, however, it be contended that the physical fact of possession does not obviate the necessity of an instruction on circumstantial evidence in that it is not direct testimony, it is shown that the defendant admitted the taking of the property. This constitutes direct evidence of the taking, although the defendant claims that he acquired the possession lawfully; that is, by finding the tarpaulin in a field.
The Supreme Court of Oregon, in a prosecution for larceny where the defendant admitted that he had the property in his possession but claimed that he had purchased it from a stranger, held, where the court instructed the jury on the question of purchase, presumption of innocence and reasonable doubt, it was not erroneous to refuse to instruct specifically upon the question of circumstantial evidence.
It is held that if the accused admits that he took the property, this relieves the court of the necessity of charging on the law applicable to circumstantial evidence, although the defendant may claim that he bought the property from a stranger previous to the taking. [Williams v. State, 44 S.W. (Tex. Cr.) 1103.] See also People v. Kaatz, 3 Parker, Cr. (N.Y.) 129. A like rule applies where the accused confesses the taking but insists that he did so without a fraudulent intent, under which state of facts it was held that the case was removed from the realm of circumstantial evidence so as to require a special charge thereon, the only issue left being that of intent. [Roberts v. State,
On a trial for theft of cattle where the accused testified that he took the animal by virtue of purchase from a stranger, this relieved the court of the necessity of charging on circumstantial evidence on the theory that there was direct testimony as to the taking. [State v. *170 Holmes, 42 S.W. (Tex. Cr.) 979; Houston v. State, 47 S.W. (Tex. Cr.) 468.]
In summing up the rulings of the courts on the question of defendant's right to an instruction upon circumstantial evidence in larceny cases, it is said in 17 Ruling Case Law, page 80, that "the rule is universal that where an appellant testifies, and admits the possession of stolen property, but claims that his possession thereof was obtained in such manner as not to constitute theft, the case is not one of circumstantial evidence." [Worsham v. State,
In view of all of which, I am of the opinion that the judgment of the trial court should be affirmed.