State v. Laris

2 P.2d 243, 78 Utah 183, 1931 Utah LEXIS 20

Opinions

EPHRAIM HANSON, J.

The defendant was convicted in the district court of Uintah county of grand larceny and sentenced to an indeterminate term in the penitentiary. From the conviction and judgment he appeals.

By appropriate assignments of error the appellant inter alia challenges the sufficiency of the corroborative evidence to sustain a conviction on the testimony of an accomplice.

The defendant alone is accused of having committed the crime. In the information it is charged that the defendant on or about the 9th day of August, 1929, “did feloniously take, steal and drive away two head of white faced heifers each branded £ on the right ribs, the property of C. W. Killian, with intent to deprive the owner of said animals.”

It appears that C. W. Killian, one of the state’s witnesses, was a resident of Roosevelt and owned about sixty head of various breeds of cattle, which he kept, during the summer months, in a 160-acre pasture at Leeton. The pasture is situated in Uintah county, about nine miles from Roosevelt. It further appears, without conflict, that Edgar Green-stick, an Indian, stole the two heifers described in the information, together with a white-faced cow, from Mr. Killian’s pasture, and drove them about two and three-fourths miles to a pasture belonging to Johnny White, an Indian. Johnny White was married to Greenstick’s cousin, and lived on the place to which the cattle were driven. The defendant was not present, nor is it contended that he took part in the actual taking and driving of the animals to Johnny White’s place. Just the exact date on which the larceny was committed cannot be determined with absolute certainty. Mr. Killian testified he was at his pasture on August 4, 1929, for the purpose of tending to a stream of water which he then had running on his land, and that while there he saw the heifers. He made a count of his cattle at that time. His count, however, showed but fifty-six head when there should have been sixty-one. Except for the statement of Mr. Killian and the testimony of the Indian, the animals might have been taken as early as the latter part of July, but it is certain they could not have been taken from Killian’s pasture later than the 6th of August.

It is conceded by the prosecution that the Indian, Green-stick, is an accomplice, and to sustain the verdict against the defendant the Indian’s testimony in respect to the defendant’s complicity in the crime must be corroborated. The Indian’s testimony was received through an interpreter, and there is considerable confusion and some marked contradictions in portions of his testimony. We are giving what appears to us a full and fair statement of those features of his testimony which it is contended involves the defendant in the commission of the larceny. Some time after March 8, 1929, the Indian, according to his testimony, met the defendant near White Rocks, on the public highway. They had a conversation which resulted in an understanding between them that the defendant would pay him if he would go out and get or “rustle” some cattle for the defendant. On July 22d, which was the opening day of the sun dance, an Indian ceremony held at White Rocks, the Indian came to the defendant’s home at Roosevelt and talked some more on what he called “the deal.” This meeting, according to his testimony, resulted in the defendant advancing him $4 for the sun dance, and the defendant telling him to go above or in the vicinity of Hayden and get some cattle.

In this connection we may here state, parenthetically, that the defendant testified that the Indian said to the defendant that he had a couple of cows he wanted to sell him. The defendant then told the Indian that he was going to Bingham that same day or the day following. The Indian said he wanted to sell the cows so he could get some money for the sun dance. The defendant told him that he would be gone for three or four days, and the Indian then asked the defendant if he could not give him a few dollars to spend at the sun dance, and the defendant gave him a check for $4 and told him that when he came back that he would go up and look at his cows. This check was received in evidence on the defendant’s offer.

After the sun dance, the Indian took two or three head of cattle from somewhere in the vicinity of Hayden and drove them away, and put them in some other pasture from which they shortly broke out. As the Indian was on his way down to Roosevelt to inform the defendant that he had some cattle, he saw the cattle on the highway and put them into the corral at the “Poor Farm.” He then went down to see the defendant, and the defendant promised to meet him at the corral, but failed to keep his appointment. The cattle broke out of the corral, or some one turned them loose. On August 4, 1929, while on the way to Roosevelt to tell the defendant of the fact, he met the defendant at a Mr. Timothy’s place, near the “Gyp” plant north of Roosevelt.

Whatever was said or done on this occasion took place in the presence and hearing of Mr. Timothy and a Mr. Davis, of Vernal, both of whom were witnesses for the defendant at the trial. There is a sharp conflict between the testimony given by the defendant and his witnesses and the testimony given by the Indian as to what was there said and done. It is sufficient to say in respect to the testimony as to this event — and the prosecution does not claim anything to the contrary — that, except for the testimony of the Indian, there is nothing which tends to connect the defendant even remotely or in the slightest degree with the commission of the offense charged. We will not, therefore, advert further to the evidence of what was there said and done, except to now say that the Indian testified that the defendant there told him to go up to Leeton and get some cattle, and, when he had taken and placed them, to come and let the defendant know. There is some uncertainty in his testimony as to the exact place he was to deliver the animals, but we think a fair conclusion of the evidence is that it was to be at the corral of Johnny White. He testified that he alone then went up to Killian’s pasture at Leeton and took and drove away the cattle as has already been stated. Very early on the morning of August 7th, he went down to the defendant’s home at Roosevelt and told the defendant that he had the cattle. As the defendant had already made his plans for that day to go to Price, he could not go up for the cattle until the following day, August 8th. From this point there is little material conflict between the testimony of the defendant and the Indian. When the defendant told the Indian he could not go up for the animals until the morrow, the Indian asked the defendant for money to get a tire for his Ford car, so that he could take his squaw to the Uintah Basin industrial celebration to be held at Ft. Duchesne on the 7th, 8th, and 9th of August. With the defendant’s permission, the Indian went to a garage at Roosevelt and secured the tire on the credit of the' defendant, after which he came back to defendant’s residence and got a check for $4 which the defendant testified he advanced to him as an accommodation to the Indian on the strength of his repeated statements that he had the “cows” for sale, and of the Indian’s manifest anxiety about being able to get his car in shape so as to permit him and his squaw to attend the celebration. On the defendant’s offer, this check was also received in evidence.

On the 8th day of August, the defendant, having with him his eleven year old boy, went to Johnny White’s place, and, with the assistance of Greenstick, loaded the two heifers into his truck. The loading occurred between 9:30 and 11 o’clock a. m. As soon as he came to the corral, the defendant saw and greeted Johnny White, who was some distance away attending to a stream of water running on his land. Before leaving the corral, the defendant gave Greenstick another check for $10. This check, too, was received in evidence on the defendant’s own offer as a part of his direct examination. The balance due the Indian was to be paid when the defendant had disposed of them at Price. The defendant hauled the two heifers to Roosevelt, taking the usual and ordinary route. He unloaded them at 12:30 p. m. into an open corral situated alongside the general highway from which they were seen within thirty minutes by Mr. Killian, the owner, as he was driving past on his way to Ft. Duchesne. Mr. Killian went to the corral and immediately recognized the heifers as being his own. They had both his marks and brand. Soon thereafter Mr. Killian had a conversation with the defendant wherein the defendant bold Mr. Killian that he had bought them from the Indian, Edgar Greenstick. That afternoon, while attending the Uintah Basin industrial celebration at Ft. Duchesne, the defendant was arrested.

The defendant lives at Roosevelt, Duchesne county, and and has been engaged in the business of buying and selling cattle, hogs, and poultry for more than twelve years. He conducts a sort of slaughteryard, and sometimes kills the animals and vends the meat. Edgar Greenstick, the Indian, has a small farm on which he and his squaw live, located in the vicinity of White Rocks, in Duchesne county. He knew the defendant well and the defendant knew him,-and defendant had bought cattle from him within the preceding year. The Indian at one time had ten head of cattle. He said that he had sold cattle to the defendant on various occasions until he had sold them all to him. The defendant denied that he had bought them all; some of them, he said, were “too thin.” It is conceded that the defendant bought some of them during the preceding year, and that on January 4, 1929, he bought a steer for'which he paid the Indian $50, and on March 3, 1929, he bought two calves for which he paid $30. The payments were made by checks and these were received in evidence on the defendant’s offer.

The Indian was, of course, an accomplice. As shown by his testimony, the complicity of the defendant consisted wholly in advising, encouraging, and inducing him to steal the animals in question and to deliver them to defendant at the corral of Johnny White. Of this there is no direct evidence in the record other than his testimony. For the necessary corroboration the state must therefore rely on circumstantial evidence. The question presented by the assigned error we are now considering is the sufficiency of the corroborative evidence. The rule prescribed by our statute in respect to corroboration is found in Comp. Laws Utah 1917, § 8992, and reads as follows:

“A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.”

In applying this statute, this court has frequently held that the test of the sufficiency of the corroborative evidence is that it need not be sufficient in itself to sustain a conviction, but it must in and of itself tend to implicate and connect the accused with the commission of the crime charged, and not be consistent with his innocence. It is insufficient if it merely casts a grave suspicion on the accused. State v. Cox (Utah) 277 P. 972; State v. Butterfield, 70 Utah 529, 261 P. 804; State v. Lay, 38 Utah 148, 110 P. 986, 987; State v. Spencer, 15 Utah 149, 49 P. 302.

Another test which has been quite generally approved is one suggested in Welden v. State, 10 Tex. App. 400, as follows:

“Eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be inculpatory evidence — -evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is not corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him.”

See also, People v. Morton, 139 Cal. 719, 73 P. 609.

The state insists that there is ample evidence independent of the Indian’s testimony to meet the requirements of the statute. In support of this assertion it relies principally upon the defendant’s exclusive possession of the recently stolen heifers and the explanation made by defendant to Mr. Killian in the course of the conversation which took place at defendant’s corral.

In its argument in this connection the state invokes the rule declared by Comp. Laws Utah 1917, § 8285, which, after defining larceny, provides:

“Possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt.”

It is undoubtedly a correct principle, approved by the courts without exception, that in a prosecution for grand larceny, when there is no direct evidence as to the party guilty of the felonious taking and the asportation of the property, evidence of the larceny and the possession in the accused of the recently stolen property, together with an unsatisfactory explanation of his possession, will warrant a finding that the accused — the possessor of the stolen property — is the thief. This is so independently of the statute. Indeed, some courts hold that proof of the larceny and of possession by the accused of the recently stolen property alone is sufficient to warrant such a finding. It seems, therefore, to have been the purpose of the statute to overcome any uncertainty on this question in this jurisdiction by declaring in favor of the stricter rule. State v. Potello, 40 Utah 56, 119 P. 1023; State v. Converse, 40 Utah 72, 119 P. 1030.

It should be observed that the only inference which the triers of fact are justified under the statute in drawing from a proved larceny and the accused’s exclusive possession of recently stolen property where the accused fails to satisfactorily explain his possession runs to and establishes the missing fact — that the possessor of the stolen property is the thief, the one who feloniously took and carried away the property. In such a case the inferred fact sustains a logically relevant and reasonable relation to the proved fact. The existence of the proved facts renders probable the existence of the inferred fact. 22 C. J. 158.

In the instant case, however, we are confronted with an entirely different situation. By the direct and positive evidence of the state, it has been shown that the Indian was guilty of the felonious taking and driving away of the animals. Not only is the larceny shown by the state’s evidence, but the party who committed the larceny is also shown to be some one other than the defendant. The inference that might have been drawn in the absence of such evidence, from the defendant’s possession of two of the recently stolen animals and the unsatisfactory explanation of his possession — should it be assumed that his statements as to where the animals were loaded was at all material and unsatisfactory — becomes inoperative in the light of the actual facts disclosed by the state’s evidence that the Indian committed the larceny. 22 C. J. 156, § 88; Lawson on Presumptive Evidence (2d Ed.) 659; State v. Converse, 40 Utah 72, 119 P. 1030.

It is plain, therefore, that the defendant’s possession of the two heifers, under the facts in this case, whether considered in connection with, or independently of, the statute, does not “in itself and without the aid of the testimony” of the Indian tend to connect or to implicate the defendant with the commission of the crime charged and of which he was convicted.

The case of State v. Potello, 40 Utah 56, 119 P. 1023, is conclusive against the. contention here urged by the state. The defendant was prosecuted for the larceny of a horse. In making its case, the state failed to prove the larceny, but showed that the animal had strayed away from the owner’s premises, and recently thereafter was found in the defendant’s possession. The defendant testified to circumstances which, together with what was shown by the state, proved the larceny, but which also showed that he had bought the horse from two men whom the evidence showed were guilty of the larceny. It was held that under the statute the state cannot rely on the defendant’s possession of recently stolen property as evidence of his guilt, if the only evidence of the larceny is that given by the defendant when such evidence shows that the larceny was committed by some one other than the defendant, even though he may not have given a truthful or satisfactory explanation of his possession.

The other witnesses called in behalf of the state were Mr. and Mrs. Killian and Johnny White. Mrs. Killian heard the conversation between Mr. Killian and the defendant. It is shown by Mr. Killian’s testimony that the animals belonged to him and were branded with his brand; that he had not sold them, and they were taken from his pasture without his knowledge or consent; that he had sold cattle in the past, and had sold some to the defendant. It is not shown that defendant knew Mr. Killian’s brand. This evidence does no more than show that the crime was committed. The statute expressly says that this is insufficient corroboration. In itself it does not implicate or tend to connect the defendant with the commission of the offense.

The state has, however, attached so much importance to the defendant’s explanation of his possession of the animals that we have deemed it advisable to set out the conversation practically verbatim as given by Mr. Killian. Defendant told Mr. Killian that he had bought the heifers from Edgar Greenstick, an Indian, and further said:

«* * * He has another one. I think the mother of one of these.

“Killian asked: Where is the other one?

“The defendant said: Up at his place.

“Killian asked: Where is his place?

“Defendant: Up on the bench near Jimmie Nephi’s.

“Killian: Did you buy them off him, Louie?

“Defendant: * * * I bought them but I haven’t paid him for them.

“Killian: Well, Louie, you know they are my cattle and I want them.

“Defendant: No, they are not your cattle. They are wild; they are Indian cattle. White men’s cattle won’t be that wild.”

The witness, after having been twice examined and recalled, remembered that he had asked the defendant where he had loaded the cattle, and that the defendant answered:

“Up at Edgar’s place, near Jimmie Nephi’s.”

It thus appears from Mr. Killian’s testimony, although denied by the defendant, that the defendant had made an untruthful statement as to where the heifers had been loaded, and as to the place where the cow was kept. He freely and truthfully told how and from whom he acquired the possession of the animals. Can it be a material incriminating circumstance to represent, if he did, that he loaded the heifers at the accomplice’s place, rather than at Johnny White’s place? He frankly and truthfully volunteered to Mr. Killian that the accomplice had another animal that was probably the mother of one of the heifers. Can it then be urged, because he said the animals were at the accomplice’s place rather than at Johnny White’s place, that that is such an inculpatory circumstance as to justify an inference that he advised and encouraged the Indian to steal and drive away the animals ? If for this reason it cannot be said that this conduct is entirely consonant with innocence, we are satisfied that it does no more than cast a mere suspicion on the defendant, which, as we have already seen, is wholly insufficient corroboration. We may say in this connection that Edgar Greenstick’s place is only about five miles southeast of Johnny White’s place, although they are in different counties. From Roosevelt they are reached by the same highway.

The evidence of Johnny White is stressed with particular emphasis in the state’s brief as being corroborative of the Indian’s testimony. It is contended that, because Johnny White saw the defendant and the accomplice load two of the three stolen animals into the defendant’s truck and the defendant drive away with them, as the accomplice testified had been done, White’s testimony is therefore corroborative of the accomplice’s testimony. But does the circumstance of the defendant receiving two animals from the accomplice at the corral of Johnny White and loading them into his truck with or without the assistance of the accomplice in itself tend to connect the defendant with the commission of the offense charged? We think not. We do not see that any incriminating inference can reasonably be drawn from that circumstance. In itself, it is entirely consistent with an innocent transaction. No suggestion is made in behalf of the state that there was anything incriminating in the fact that the defendant received the animals from the Indian at Johnny White’s corral. As hereinbefore stated, much was made of the alleged false statement by the defendant to the effect that he had loaded the animals at Greenstick’s farm, when in fact he loaded them at Johnny White’s corral. This feature was stressed by the state because it involved an untruthful statement asserted to have been made by the defendant. No importance was attached to it because as a fact the animals were loaded at Johnny White’s corral. It must be obvious that this circumstance in itself does not implicate or tend to connect the defendant with the commission of the offense charged in the information.

“The accomplice may state any number of facts, and these facts may all be corroborated by the evidence of other witnesses; still, if the facts thus corroborated do not tend to connect the defendant with the crime, or if they do not point pertinently to the defendant as the guilty party or as a participant, this would not be such corroboration as is required by the Code.” Welden v. State, supra; State v. Cowell, 149 Iowa 460, 128 N. W. 836.

In the state’s brief, it is specifically stated that the corroborative evidence on which the state relies is the testimony of Johnny White and Mr. Killian, which we have just stated, is wholly insufficient. No mention is made of any other fact or circumstance claimed to have any evidentiary value as corroborative of the testimony of the accomplice. We have, however carefully considered the entire record, and we are satisfied that, when the testimony of the accomplice is eliminated, the other evidence in the case falls far short of the requirements of the statute to establish the necessary corroboration for the reasons heretofore given.

From this conclusion it follows that the conviction and judgment imposed on the defendant must be reversed, and the cause remanded to the district court for a new trial.

Other errors are assigned, some of which will probably arise on another trial, and, inasmuch as the case is to be remanded for a new trial, these will require our consideration at this time.

The appellant complains because the court overruled his motion to quash the information.' In his motion to quash, the appellant took the position that the district court had not acquired jurisdiction of the cause, for the reason that the justice of the peace before whom the preliminary examination was held had not indorsed on the complaint an order holding the defendant to answer to the charge in the district court, as required by Comp. Laws Utah 1917, § 8755, nor that such order, if made, had been signed by the justice of the peace.

It appears from the record of the justice of the peace that, although the order holding the defendant to answer in the district court was not indorsed on the complaint, such an order had been made and entered by him in his docket with the other proceedings had in the case, and a transcript of the docket duly certified to by the justice of the peace was filed with the complaint and other papers in the case in the district court. This was held in the case of State v. Crook, 16 Utah 212, 51 P. 1091, to be a sufficient compliance with the statute in question. These assignments are without merit.

Exception was taken to the giving of instruction No. 7, and the giving of the same is assigned as error. It is as follows: “You are instructed, gentlemen of the jury, that if you shall find from the evidence that the witness Greenstick represented to the defendant that the heifers described in the information belonged to him, Greenstick, and offered to sell the said heifers to the defendant, and the defendant agreed to purchase said heifers and received the same in good faith, believing them to be the property of Greenstick, then I charge you that your verdict must be not guilty.”

The appellant urges two reasons why the instruction is erroneous: First, even though it were incumbent on the defendant to establish his good faith in the purchase of the heifers, to do that, the instruction imposes the duty on the defendant to show that the seller expressly represented to him that the title to, and ownership of, the heifers, was vested in the seller. It is quite uniformly held as a matter of law that, where the animals are present and in actual possession of the seller, as in the instant case, the purchaser may assume that the title and ownership of the animals are with the seller. Second, there is a presumption of innocence —as applied to the purchase of the animals in question, of good faith — extended in favor of the defendant throughout the trial. This instruction, however, cast upon the defendant the burden of establishing the good faith of the purchase. As the burden of proof to establish the commission of a crime necessarily extends to every essential element of the crime, the burden is, of course, with the state to overcome that presumption beyond a reasonable doubt.

A very similar question was before the Circuit Court of Appeals, Eighth Circuit, in the case of Drossos v. U. S., 2 F. (2d) 538. An instruction that, if the jury was convinced that the accused’s relationship with the woman was innocent, and that he had no intention of having immoral relations with her, he should be acquitted. It was held that the instruction was erroneous and prejudicial in shifting the burden of proof on the accused, and that the error was not cured by an instruction that the accused is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and, in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to an acquittal.

A number of errors are assigned in which the appellant complains that witnesses were required to pass upon the credibility of the testimony of other witnesses. The ap pellant gives by way of example a question put to the witness Davis, called in behalf of the defendant: “Q. And if Mr. Timothy said that he and Louis Laris was down in the field looking at that cow at the time the Indian boy drove up to the truck, was Timothy mistaken?” Objection to which was overruled.

It is obvious that questions such as the foregoing are quite improper, and objection thereto should be promptly sustained. It would seem to be wholly unnecessary to say that it is no function of a witness to pass either upon his own credibility or the credibility of other witnesses in the case. This is the exclusive prerogative of the jury. 40 Cyc. 2407.

We find no merit in the other errors assigned.

For the reasons hereinbefore given, the conviction of, and the judgment against, the defendant is hereby reversed, and the case is hereby remanded to the district court of Uintah county, with direction to grant a new trial.