State v. Swarens

241 S.W. 934, 294 Mo. 139, 1922 Mo. LEXIS 57

• Court: Supreme Court of Missouri
• Decided: May 22, 1922
• Status: Published

Opinions

HIGBEE, J.

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. 0. 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.

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 place when said property was stolen, of 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 the presumption of guilt. [State v. Sasseen, 75 Mo. 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 the weight of all the evidence," etc. The w~rds we have italicized put an undue burden on tbc fendant. Where there is no evidence of the defendant's good character, the rule ~n this State is that the 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, 101 Mo. 316, 330.] The general rule elsewhere is that the presumption is removed if the explanation leaves the matter in doubt. "In other words, ~vhen such a reasonable explanation of the possession is given, the prosecution must establish the falsity of it beyond a reasonabiQ doubt." [25 Cyc. 137.]

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 there-f ore in conflict, a'nd the jury would `not know which to ado~3t as their guide in arriving at their verdiet. [State v. Herrell, 97 Mo. 105, 110; Wojtylak v. K. & T. Coal Co., 188 Mo. 260, 282; Rissmiller v. Ry. Co., 187 S. W. 573; State v. Harris, 232 Mo. 317, 321; Hall v. Coal & Coke Co., 260 Mo. 351, 369; Johnson v. Building Co., 171 Mo. App. 543, 560; Traylor v. White, 185 Mo. App. 325, 331; 38 Cyc. 1604.]

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 Woodso~ and David E. Blair, JJ., concur; I avid F. Blair, J., concurs in separate opinion in the second paragraph, of which James T. Blair, C. J., concurs; Walker, J., dissents in separate opinion.