Opinion
No. 29273.
November 9, 1931.
1. LARCENY.
The corpus delicti in a charge of grand larceny is sufficiently proven where it is shown that cattle were stolen from the pasture and were found afterwards in the possession of a third person, and that the defendant sold such cattle to such third person. In such case the presumption of law may be applied that the defendant, being the first person shown to have been in possession of the stolen property, is guilty of the larceny.
2. LARCENY.
It is sufficient in a case of grand larceny to establish the corpus delicti that the accused was seen driving a truck with the cattle in it; that he sold those particular animals to a third person: that he made conflicting statements to such person as to his possession of the property and urged him to conceal the property, and failed to testify or to make a reasonable explanation on the trial as to how he came into possession of the cattle, and that the cattle were taken without the consent of the owner from the pasture where they were placed by the owner; and that no other person was seen in possession of them until the defendant was seen in possession of them.
3. INSTRUCTIONS.
Where a defendant is jointly indicted with a third party for the larceny of cattle and the proof shows that the cattle were stolen from a pasture and that tracks of the cattle and a man and also tracks of a horse were seen leading from the pasture to the highway, and on discovery of the theft the third party jointly indicted fled, it is not error to instruct the jury that, if they believe the defendant and the third person acted in conjunction with each other and that the cattle were stolen either by the defendant or the defendant in conjunction with the third party, then they should find the defendant guilty.
APPEAL from circuit court of Copiah county; HON.E.J. SIMMONS, Judge.
J.H. Garth, of Hazlehurst, and E.B. Sauls, Jr., A.A. Cohn, and J.W. Cassedy, all of Brookhaven, for appellant.
There must be proof first, that the property described in the indictment was stolen, the mere fact of finding one man's property in another man's possession raises no presumption that the latter stole it. Second, that the property shown to have been possessed by accused was the stolen property. Third, that the possession was recently after a larceny.
36 C.J., 867, Sec. 427.
Proof of the corpus delicti is obviously deficient when the evidence fails to show a taking and carrying away of the property described in the indictment.
36 C.J., 905, Sections 483 and 484.
The unexplained possession by one person of goods belonging to another does not raise a presumption that a larceny has been committed and the possessor, a thief, additional evidence is necessary to establish a corpus delicti.
17 R.C.L. 71, section 76; Jeffries v. State, 62 So. 270; Fletcher v. State, 131 So. 251; Ezell v. State, 130 So. 487; Sorrells v. State, 94 So. 209; Hunt v. Commonwealth, 70 Am. Dec. 443; Sanders v. State, 52 So. 417; Perry v. State, 46 So. 470; People v. Caniff, 2 Park. Criminal 586; Younkins v. State, 2 Cold. 219; State v. Kent, 65 N.C. 311; State v. Hogard, 12 Minn. 293; Bailey v. State, 52 Ind. 462, 21 Am. R. 182; Mizell v. State, 38 Fla. 21, 20 So. 769.
The court erred in granting the third instruction for the State as follows:
"The court instructs the jury for the State, that if you believe from the evidence beyond a reasonable doubt, that the two heifers in question were feloniously stolen and carried away from the pasture of Mack Bass, either by the defendant or by the defendant and Boat Fairman, acting in conjunction with each other, then it is the sworn duty of the jury to find the following verdict: `We, the jury, find the defendant guilty as charged.'"
This instruction was erroneous for the reason that it authorizes the jury to return a verdict of guilty against the appellant if they believe that the cattle in question were feloniously stolen and carried away by the defendant and Boat Fairman acting in conjunction with each other. There is absolutely and positively no proof whatsoever to show that the appellant and Boat Fairman acted in conjunction with each other or acted at all.
Wm. A. Shipman, Assistant Attorney-General, for the State.
Proof of the corpus delicti in larceny may be established by circumstantial evidence as in any other crime.
11 Bish. New Cr. Proc. (Sec. Ed.), Sections 1056-1057; Crab v. State, 152 Miss. 602, 120 So. 569.
It is always competent, on a prosecution for larceny, to show the voluntary statements of defendant therein, as to how he came into possession of stolen property.
Bunckley v. State, 77 Miss. 540, 27 So. 638; Murray v. State, 36 So. 541 (Miss.); Foster v. State, 52 Miss. 695; Payne v. State, 57 Miss. 348; Stokes v. State, 58 Miss. 677.
By the fourth specification of error the appellant complains of the action of the trial court in giving the third instruction for the State. Not a single authority is cited to sustain it. The instruction is a correct statement of the law as applied to the facts and circumstances disclosed by the evidence.
Devine v. State, 132 Miss. 492, 96 So. 696.
The appellant, Falvey, was jointly indicted with one Levi, alias "Boat" Fairman, of a charge of grand larceny, and was tried separately for the said crime and convicted and sentenced to the state penitentiary for three years.
The main assignment of error is that the corpus delicti was not sufficiently proven for the presumption of law to be applied that a person who is found in the recent possession of stolen property is presumed to be guilty of larceny.
The larceny was of two heifers of the value of fifty dollars. These cattle were confined in a pasture belonging to a third party. On Sunday afternoon, the 11th day of May, 1930, the cattle were missing from the pasture, or failed to come home as usual at nightfall. An investigation was made, and it was found that the cattle had been driven through a breach in the fence between the pasture and the defendant Boat Fairman's place where he was growing a crop. There were cattle tracks and tracks of one man, and a horse track which led into the public road adjoining Fairman's place, these were traced some distance down the road and then the tracks were lost. Subsequently it was learned by the owner of the cattle that some one claimed to have seen the defendant Falvey driving a truck containing cattle. The owner and others interviewed the defendant, and he denied that he was driving the truck containing the cattle, stating that he had had no truck for more than two years and it could not have been him. Several weeks after the cattle were missing they were found in the pasture of one Thomas Price, who stated that he bought the cattle from the appellant. He also testified to this effect, and testified further that a few days after he bought the cattle the appellant came to him and stated that the cattle were stolen cattle, and that the owner was trying to lay the matter off on the negro, Boat Fairman, but that Fairman was only a hired man, and that while he (the appellant) had bought the cattle, they were stolen cattle, and he advised the purchaser from him to move the cattle where they would not be seen.
There was also testimony of another witness who stated that he saw the appellant on the 13th day of May, the day the cattle were sold to Thomas Price, driving a truck along the highway and that the truck contained cattle. This truck was driven past Brookhaven, Mississippi, a place where there were three markets which bought cattle for marketing purposes; the cattle were driven to the witness Price's place and sold to him.
The Negro, Boat Fairman, disappeared immediately upon the discovery of the theft and had not been located at the time of the trial.
The owner of the cattle, Mr. Hester, testified showing the cattle were stolen from the pasture, and other testimony showed that the appellant sold the cattle, claiming that he bought them from a named person; subsequently, in talking to the purchaser and asking him to remove the cattle, the appellant stated that he bought the cattle from a different person from that one first stated. The appellant himself did not testify and explain how he came into possession of the cattle.
We think the evidence was sufficient to establish corpus delicti as the animals had been confined in a pasture; as it was shown they were missing therefrom on May 11th; as investigation showed they were driven out of the pasture through a breach made in the fence; as accompanying the tracks of the cattle were the tracks of a man and of a horse; as they were driven through a cultivated field adjoining said pasture, and on into a road, where trace was lost; as early Tuesday morning, the 13th of May, 1930, the appellant was seen driving a truck with cattle in it, and he sold these particular animals to a man in an adjacent county; and as he made conflicting statements to such person as to his possession of the property and urged him to conceal the property, and failed to testify or make, by any other person, any explanation of the circumstances by which he came into possession of the cattle. The cattle having been shown to have been stolen, and the appellant being the first person seen with them in possession after the said theft, the presumption of guilty of larceny applies to him, and there is nothing in this case to rebut or destroy that presumption.
It was also complained that the court erred in giving an instruction for the state. The instruction complained of reads as follows: "The court instructs the jury for the state, that if you believe from the evidence beyond a reasonable doubt, that the two heifers in question were feloniously stolen and carried away from the pasture of Mack Bass, either by the defendant or by the defendant and Boat Fairman, acting in conjunction with each other, then it is the sworn duty of the jury to find the following verdict: `We, the jury, find the defendant guilty as charged.'"
It was said that this instruction is erroneous for the reason that it authorized the jury to return a verdict of guilty if they believed the cattle in question were feloniously stolen and carried away by the defendant and Boat Fairman, acting in conjunction with each other, and there is absolutely no proof that appellant and Boat Fairman acted in conjunction with each other or acted at all. The statement which the defendant made to the purchaser of the cattle on his second visit — that the owner was trying to lay the whole matter on the hired negro — and the fact that the negro fled from the community upon the discovery of the theft, coupled with the fact that the cattle were driven through the place occupied by him in growing a crop, is a sufficient predicate for the giving of this instruction.
It appears that the cattle were stolen, and, as soon as the theft was discovered, Fairman fled the community, and that appellant was in possession of the cattle and sold them under a false statement as to where he obtained them or where they came from and whose cattle they were. There was further proof that there were tracks of both a man on foot and some one on horseback at the time the cattle were stolen, and while this proof does not show who the persons were, we think the circumstances indicated were sufficient to justify the giving of the instruction complained of.
We find no reversible error in the trial, and the judgment is affirmed.
Affirmed.