111 Mo. 538 | Mo. | 1892
The defendant was indicted and convicted of grand larceny in the circuit court of Cedar county at the October term, 1891. He assigns many reasons why he should have a new trial; but, without enumerating them, it is sufficient to say that his exceptions to the instructions of the court, afford the' only meritorious ground for impeaching the verdict,, upon the record here.
The court, among other instructions, gave the following of its own motion. “3. The court instructs.
“4. Before you can convict on circumstantial evidence it must be of such character and weight as to exclude all reasonable hypothesis of defendant’s innocence.”
The evidence connecting defendant with the offense was principally circumstantial, and, had the jury been properly instructed, we would not have interfered with the verdict on the ground that the evidence was not sufficient to sustain it.
The counsel for defendant does not controvert the general proposition, that where a larceny has been committed the exclusive possession of the stolen goods recently thereafter by another person raises a presumption of the guilt of the person having such possession, and unless such possession is explained in a manner consistent ;with his innocence, the presumption becomes conclusive of guilt. State v. Kelly, 73 Mo. 608; State v. Bath, 76 Mo. 501.
But, he contends that this instruction, in this case, has no support in the decisions of this court, or in the text-books. The presumption is a branch of the .law of circumstantial evidence. While the rule is not now an open question in this state, there is certainly no disposition in the courts to invade the province of the jury, and determine for them the facts upon which it is based, nor render more questionable the foundations of a presumption, so often and so ably attacked. The
In this instruction the circuit court did not require of the jury to find that the meat found in defendant’s-house was a part of a stolen animal, but a part of an animal alleged to have been stolen, and required at the defendant’s hands an explanation of his possession. If we take the view that the court assumed that the heifer was stolen, and thought it unnecessary to submit that fact, then unquestionably it was error. It is the duty of the jury to find the facts, when they are controverted and denied, as in this case, and the court should not have assumed the heifer was stolen. Moffatt v. Conklin, 35 Mo. 453; Peck v. Ritchey, 66 Mo. 114; 2 Thompson on Trials, sec. 2295, and cases cited.
But if this was not the theory upon which the court proceeded, then the instruction is more vulnerable still, in that it announces a presumption of guilt from the possession of property that is simply alleged to be stolen. This throws upon the defendant the burden of proving his innocence, before the state has established those facts from which according to the common observation and experience of mankind his guilt might-be presumed and found. In either view, it was erroneous. As the case was one of circumstantial evidence and this presumption was invoked to assist the state in obtaining a verdict, it cannot be said to have been harmless.
II. The instruction authorizing a conviction on circumstantial evidence alone is very meager,- and failed to state the rule in such a way as to make it a safe guide to the jury. The correct formula for this
As before said, the other grounds for a new trial are without merit.
For the error in .the instruction, numbered 3, the cause is reversed and remanded for a new trial.
