State v. Wright , 122 Or. 377 ( 1927 )

Rehearing denied September 6, 1927. ON PETITION FOR REHEARING. (259 P. 298.) Defendant urges in his petition for a rehearing that the court erred in refusing to give the following instruction requested by him:

"I instruct you, Gentlemen of the Jury, that before you can convict this defendant on trial, you must believe beyond a reasonable doubt from the evidence in this case, that he is guilty of or in complicity with the original taking and any subsequent connection after the taking would not be larceny, whether in good or bad faith; and if you believe that this defendant received the cow in question from J.E. Baxter, or any other party after the felonious taking, whether in good or bad faith, he is not guilty of larceny and you must acquit him, and return a verdict of not guilty."

The requested instruction is taken from State v. Hill,63 Or. 451, 460 (128 P. 444). In that case this court held it to be error to refuse to give the instruction as requested. This court in the instant case in its opinion rendered July 5, 1927, held that the court did not err in refusing to give the requested instruction. Defendant very plausibly insists in his petition for rehearing that if it was error to refuse to give the requested instruction in the Hill case it was also error to refuse to give it in the instant case. The distinction between the two cases is not broad. There is a distinction, however. It must be remembered that instructions to a jury must apply the law to the particular case. An instruction properly given in one case may not be applicable in a very similar case. This court has repeatedly held that abstract instructions, though correct in law, when not applicable to the facts in the case at bar constitute reversible error where they appear prejudicial. In the Hill case the two defendants jointly indicted were brothers. They had been engaged in business as partners from their boyhood. The appellant lived some 40 miles from where the mares were stolen and still farther from the Hill ranch where his co-defendant had the horses in his possession. The appellant Hill did not pretend that he had bought the horses alleged to be stolen but had received them from his brother and co-defendant and was keeping them for him. Under this state of facts it was held by the learned justice in writing the opinion in the Hill case that the element of good faith on the part of appellant was involved. A comparison of the instruction requested and the one given in the Hill case reveals that the element of good faith was omitted from the instruction given and "he himself did not assist and abet in such felonious taking" was substituted. The gist of the decision of the Hill case, so far as applicable to the requested instruction is concerned, is that under the peculiar circumstances in that case the court should have given the instruction as requested in order that it might be made clear to the jury that the appellant-defendant should not be convicted of larceny because he was a brother and partner with his co-defendant. Appellant's good or bad faith in receiving the horses was not material evidence of his participation in the original taking. He might have received the horses to protect his brother. That act would not make him guilty of larceny, but it would be evidence of bad faith.

In the instant case the appellant claims to have bought the animal alleged to have been stolen from his co-defendant. The court very correctly and thoroughly instructed the jury on that phase of the defense. The instruction as given is as follows:

"I instruct you, Gentlemen of the Jury, that if you find from the evidence in this case, that the defendant on trial secured the possession of the animal alleged in the indictment by trade or purchase after the same had been stolen, if you find that said animal had been stolen, from one who claimed to be the owner thereof, and that the defendant did not participate in the original taking of the same, you should find the defendant not guilty."

It correctly states the law and covers every element of the law applicable to the case which is included in the requested instruction. The opinion in the Hill case goes to the extreme in holding the court in that case erred in refusing to give the requested instruction, and the ruling should not be extended. In the instant case the good faith of appellant is not involved. To have given the instruction as requested would have been to instruct on an abstract irrelevant element of law.

Petition denied. REHEARING DENIED.