State v. Ireland

Information — Variance — Proof — Mistake — Error — Evidence— Unexplained Possession of — Deposition. 1. Where the information avers the title to stolen property in B., and the evidence shows that B. and J. are the owners thereof, the variance between the averment and proof is not fatal, overruling People v. Frank, 1 Idaho, 200, on that point. 2. Under the provisions of section 8236, Revised Statutes, no error or mistake in an information renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right. 3. Meld, the evidence shows that the stolen property was taken without the consent of the owner. 4. The weight to be given to the explanation by the defendant of his possession of recently stolen property is exclusively for the jury, and held, in this case, that such evidence was not sufficient to raise reasonable doubt of his guilt. 5. A deposition taken under the provisions of section 7588, Revised Statutes, may be introduced on the trial on behalf of the state, if it is first shown that due diligence has been exercised to procure the attendance of the witness, and has failed to procure it. (Syllabus by the court.)

APPEAL from District Court of Custer County. Honorable J. M. Stevens, Judge. Defendant was convicted of grand larceny. In the information, the property is alleged to be that of By-bee, but on the trial it was proved to be that of the firm of Bybee & Jones, and this is in law a fatal variance. (People v. Frank, 1 Idaho, 200; Scott v. State, 42 Ark. 73; McGowan v. State, 58 Ark. 17, 22 S. W. 955; Hanndhan v. State, 7 Tex. App. 664; People v. Bogart, 36 Cal. 245; McBride v. Commonwealth,, 13 Bush (Ky.), 337; Robinson v. State, 5 Tex. App. 519; People v. Reed, 70 Cal. 529, 11 Pac. 676; Wharton’s Criminal Evidence, 9th ed., see. 94, and citations; Clark’s Criminal Procedure, pp. 227-231, and citations; 1 Bishop’s Criminal Procedure, secs. 581, 583, and citations; 2 Bishop’s Criminal Procedure, secs. 718, 723, and citations; 12 Eney. of PI. & Pr., pp. 960, 967, and notes.) The ownership of the property being joint in Bybee & Jones, there was an utter failure of proof of want of consent to the taking on the part of Jones, and the defendants should therefore have been acquitted. (12 Eney. of PI. & Pr., p. 977, and notes; Wilson v. State, 12 Tex. App. 481; 5 Lawson’s Criminal Defenses, p. 639; White v. State, 20 Wis. 236; Stinson v. People, 43 111. 397; Kellogg v. State, 20 Ohio St. 15; Krause u. Commonwealth, 94 Pa. St. 418, 39 Am. Rep. 762; Schultz v. State, 20 Tex. App. 308; Drumright v. State, 29 Ga. 430; State v. Storts, 138 Mo. 127, 39 S. W. 483.) Unexplained possession of recently stolen property does not raise a legal presumption of guilt and shift the burden of proof upon the accused, but is merely a fact from which guilt may be inferred. {State v. Kale, 12 Or. 352, 7 Pae. 523; Lawson’s Criminal Defenses, 1048; State v. Griffin, 71 Iowa, 372, 32 N. W. 447; State v« Brown, 75 Mo. 317.) It is error to instruct the jury, upon a trial for larceny, that possession of stolen property soon after it is stolen is of itself p-ima facie evidence that it was stolen by the defendant, and that the burden of proving his possession to have been honest is then thrown upon the defendant. {Conkwright v. People, 35 111. 204; Koge v. People, 117 111. 35, 6 N. E. 796.) When one indicted for theft has given a reasonable account of his possession of the stolen goods, it is then incumbent upon the state to show that such account is false. {Ward v. State, 41 Tex. 611.) The bare possession of property recently stolen is not conclusive evidence of guilt. Especially is this so of property of the kind involved in this ease. {State v. Seymour, 7 Idaho, 257, 61 Pae. 1033.) The deposition of R. L. Bybee was inadmissible, and defendant’s objection to its introduction should have been sustained, and the motion to strike it out granted. {People v. Mitchell, 92 Cal. 490, 27 Pac. 862; People v. Morine, 54 Cal. 575; People v. Ghung Ah Ghue, 57 Cal. 567; Williams v. Ghadbourne, 6 Cal. 559; Wharton’s Criminal Evidence, 9th ed., sec. 229.) Eletcher Ireland and John M. Ireland were informed against and tried upon the charge of grand larceny, at the August term of the district court of the sixth judicial district, in and for Custer county. The jury were unable to agree as to the guilt or innocence of John M. Ireland, but returned a verdict of guilty as to Fletcher Ireland, who, after motions for a new trial and arrest in judgment had been duly made, argued and overruled, was by the court sentenced to the term of imprisonment in the state penitentiary, at hard labor, for the period of three years. On or about the sixteenth day of June, 1903, the horses alleged to have been stolen were hobbled and grazing upon a flat, about one-half mile below the town of Custer, Custer county, Idaho; the said defendants, and each of them, being in the said town of Custer on that day. On the morning of June 17th the horses were gone, together with some saddles and bridles belonging to some other parties in said town, and at the same time the defendants were also missed from the town of Custer. Word was immediately sent to the sheriff of Custer county that horses had been stolen, and after telephoning to different officers, the horses in charge of Fletcher and John M. Ireland were found in Hailey, Blaine county, where they were being offered for sale, together with the two saddles and one bridle, for the sum of $50. They were arrested by the sheriff of Blaine county, and given into the custody of the sheriff of Custer county, together with the property alleged to have been stolen, on or about the twenty-first day of June, 1903. That the horses were the property of the complaining witness or that they were taken by the defendant within the county of Custer, state of Idaho, and by said defendants removed to the town of Hailey, Blaine county, Idaho, and there offered for sale, together with the saddles and bridle, for the sum of fifty dollars ($50), has never been denied by the defendants, but the sole justification, is that the defendant, Fletcher Ireland, purchased the horses in question, together with the two saddles and one ‘bridle, from a person by the name of William Eeed, which purchase was on the flat be-low Custer, on the evening of June 16 th, in the presence of ■one witness, Wert Collier by name, the said Eeed giving to Ireland no bill of sale or instrument in writing evidencing said sale. Taking the evidence in the most favorable light, and not considering the testimony of E. L. Bybee and the bill of sale ■of C. T. Jones, still the testimony would show that Jones & By-bee were, as partners, owners of the property in question, and that E. L. Bybee had the custody, possession and control of the property equally with C. T. Jones. This is sufficient. “In a prosecution for robbery the fact that the property alleged to have been stolen did not in its entirety belong to the person named in the indictment as owner is not such a variance as to prevent a conviction.” (People v. ClarTc, 106 Cal. 32, 39 Pac. 53; State v. Farris, 3 Idaho, 666, 51 Pac. 772; Henry v. State, 45 Tex. 84; Samora v. State, 4 Tex. App. 508.) The rule "taken by our supreme court in the case of State v. Sanford, 8 Idaho, 187, 67 Pac. 492, that to the effect that possession of recently stolen property, when unexplained, is a circumstance from which guilt may be inferred is a correct rule, and that if .a reasonable explanation of the possession is made by the defendant, then the state must prove its falsity, and the jury are the judges of the question, as a matter of fact, whether or not the possession has been reasonably explained. In the case of ■State v. Seymore, relied upon by appellant, Seymore gave a ■direct and positive explanation of his possession of the property, which in the light of surrounding circumstances may be reasonable.