State v. Judd , 74 Utah 398 ( 1929 )

I dissent. By the information it is charged that the defendant, a deputy treasurer of Salt Lake county, on July 23, 1923, unlawfully and feloniously appropriated $200, property of Salt Lake county, to his own use, contrary to chapter 39, § 8235, Comp. Laws Utah 1917, relating to "Crimes against Public Property." In support of the charge the evidence of the state was directed to a transaction in which one Chamberlain, at about the time stated in the information, paid to the defendant $392 to redeem certain property from a tax sale, and the giving of a receipt by the defendant showing the receipt of such amount of money, and to certain alterations made on the records and files in the redemption department of the office of the county treasurer relating to such transaction, whereby $200 of such amount so paid was not accounted for. There was evidence to show that such alterations consisted principally of altering figures on the records and files, reducing the amount so paid to $192, thus making the records and files to appear that only $192, instead of $392, were received respecting such transaction. Such was the basis of the charge, and to which the evidence of the state was directed to show that the defendant had taken $200 of moneys belonging to the county and appropriated and converted them to his own use. I think the evidence sufficient to support the charge.

The defendant was a witness in his own behalf. By his testimony he in effect admitted giving the receipt for $392, but denied that he made any of the alterations on the records or files or otherwise, and denied that he took or appropriated any part of the moneys evidenced by the receipt, or that he otherwise took or appropriated any of the moneys of the charged offense. No claim was made by him at any time that the alterations were made through mistake, or to correct the records, or that they were made for any legitimate purpose, or that they were otherwise innocently made. He unqualifiedly denied making any of such alterations, and denied taking the money or any part thereof; and no evidence whatever was adduced or any circumstance shown to show that any of such alterations were made through mistake, or otherwise were innocently made. To the contrary, the evidence without dispute shows that all of such entries were false entries.

The state, however, in its case in chief, was permitted to show, not only the alterations made on the records and files relating to the transaction with respect to the payment of the $392, but also, over the objections of the defendant, was permitted to show more than 40 other transactions and alterations of a similar character made on the records and files in the redemption department, of which the defendant was the head, and in charge thereof, between May 1, 1922, and August 27, 1926, covering a period of over four years, some more than a year prior, and some more than three years subsequent, to the alleged charge in the information, and during which time a shortage of funds was shown in the redemption department of over $7,000. There was direct evidence to show that the alterations with respect to the charged offense, and the taking and the appropriation of the alleged $200, were in the handwriting of the defendant and were made by him. But no such direct evidence was given as to the numerous other alterations and transactions, the evidence which with respect thereto was received over the objection of the defendant. In other words, there is no direct evidence that any of such alterations were made by the defendant. And as to about all of such alterations the state does not contend that there was any such direct evidence. The indirect evidence claimed by the state, tending to show that such other alterations were also made by the defendant, consists of proof that the defendant was at the head and had charge of the redemption department, the manner in which the business in such department was conducted, and the testimony of employees engaged in such department that they had not made any such alterations. It, however, was shown that the chief deputy and others with the defendant had access to the records and files in which it was claimed such alterations occurred. The defendant by his testimony also denied making any of such alterations.

It is claimed by the state, and the prevailing opinion proceeds on the theory that, though such 40 or more transactions to which such other alterations related and with which they were connected were separate and distinct transactions and offenses, yet the evidence with respect to them was properly admitted to show criminal intent. The claim of the defendant was, and as stated in the prevailing opinion, that the evidence with respect to such transaction was inadmissible, because it related to other independent and disconnected offenses, and because the proof as to the making of them and of misappropriation of funds with respect thereto by the defendant rested on mere inferences, and not on any direct evidence, and before evidence may be adduced and considered with respect to such other offenses and transactions the commission of such acts and offenses must be clearly established as a fact by direct evidence, and not left to mere inferences. In support of such contention the appellant, among other cases, cited Baxter v. State, 91 Ohio St. 167,110 N.E. 456, Gart v. U.S. (C.C.A.) 294 F. 66, State v.Stetson (Mo. Sup.) 222 S.W. 425, and Lankford v. State,93 Tex. Crim. 442, 248 S.W. 389.

In other words, it is the contention of the defendant that, if proof as to the commission of other offenses rests on a mere inference or inferences, such proof cannot legally be considered as a basis for making another inference, as to whether the defendant did or did not make the alterations relating to or connected with or committed the charged offense, because, as contended by him, to permit that is to base one inference upon another, which, as he contends, is not permissible.

That is met by the holding in the prevailing opinion that the commission of such other offenses may be proved by mere indirect or circumstantial evidence, and, when so proved or established, such commissions become facts which then may be taken as a basis for other or new inferences of fact. The holding is to the effect that, when circumstances are proven from which the commission of another offense or offenses or criminal acts is inferable and justifiable, such commission becomes an established fact, which then furnishes the basis for other and new inferences. I cannot subscribe to such a holding. I think it illogical and a mere misnomer of terms, by calling a deducible inference or inferences, however reasonable or justifiable, a proven fact. Inferences are matters of argument, reasonings and deductions from proven facts. They are not themselves evidence. They are mere results or deductions which flow and are deduced from proven facts. It is a familiar rule of evidence, and one of general recognition, that inferences may be deduced only from proven facts, and that one inference may not be based upon another inference, or a presumption of fact upon another presumption of fact. That frequently has been held by this court. State v.Potello, 40 Utah 56, 119 P. 1023; Utah Foundry Machine Co. v. Utah Gas Coke Co., 42 Utah 533, 131 P. 1173; Busse v.Murray Meat Live Stock Co., 45 Utah 596, 147 P. 626;Johnson v. Silver King Consol. Mining Co., 54 Utah 34,179 P. 61; Denver R.G.R. Co. v. Ashton Whyte-Skillcorn Co.,49 Utah 82, 162 P. 83, L.R.A. 1917C, 768.

1 Jones, Commentaries on Evidence (2d Ed.) § 364, is cited in the prevailing opinion as supporting the rule therein announced. Language is found in the citation supporting such a rule or doctrine. But it is not the language nor the doctrine of Professor Jones. Jones on Evidence (2d Ed.) § 111. It is the language or doctrine of Mr. Henderson, who prepared the second and revised edition of Jones' Commentaries on Evidence. But what he says in such respect is in conflict with what was said by Professor Jones, and is in repudiation of what is contained in the first edition of Jones' Commentaries on Evidence, prepared by Mr. Horwitz. 1 Jones, Commentaries on Evidence (1st Ed.) § 104. Professor Jones in his work classified presumptions into presumptions of fact and presumptions of law. Inferences of fact are treated by him under the classification of presumptions of fact. In speaking of general rules as to presumptions of fact, he at section 104 of his work says: "Perhaps the most important is that presumptions must be based upon facts and not upon inferences or upon other presumptions. `No presumption can with safety be drawn from a presumption'" — citing U.S. v. Ross, 92 U.S. 281, 23 L. Ed. 707 and other authorities. In the first edition of Jones' Commentaries on Evidence, prepared by Mr. Horwitz, he, in volume 1, § 104, in speaking of general rules as to presumptions says:

"The most important is that presumptions must be based upon facts and not upon inferences or upon other presumptions. The mode of arriving at a conclusion of fact by drawing inferences or by resting one presumption upon the basis of another presumption is generally, if not universally, inadmissible. Mr. Justice Strong (in U.S. v. Ross, 92 U.S. 281, 23 L. Ed. 707) said: `It is obvious that this presumption could have been made only by piling inference upon inference, and presumption upon presumption. * * * No inference of fact or law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed, * * * "In the first place, as the very foundation of indirect evidence is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, as if they were the very facts in issue."'" (Italics added.)

The author further says:

"A presumption which the jury is to make is not a circumstance in proof: and it is not, therefore, a legitimate foundation for a presumption. There must be an open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption. In other words, although from proof of the fact A, the fact B may be presumed, and from proof of the fact B the fact C may be presumed, it does not at all follow that from proof of the fact A producing the presumption of B, the fact C may be presumed, because fact C is dependent upon the proof of fact B, and presumption is clearly not proof. Nowhere is the presumption held to be a substitute for proof of an independent and material fact."

That, as I think, is the accepted doctrine of the text-writers generally (1 Elliott on Evidence, § 89; 2 Chamberlayne on the Modern Law of Evidence, § 1029; 3 Ency. Ev. p. 70), and is as I regard the undoubted weight of authority. The decisions of this court heretofore cited are in harmony with it. The rule laid down in the prevailing opinion is, as I think, in conflict with it. On the theory that the evidence objected to related to separate and distinct offenses, as the state concedes and upon which the prevailing opinion proceeds, I think the evidence was improperly received. In the case of State v. Bowen, 43 Utah 111,134 P. 623, 624, the rule is stated that:

"As a general rule, evidence of separate and similar offenses is not admissible against the accused on trial for another specific offense. There are some exceptions: Where it is material or proper to show motive, or general scheme or plan, for the commission of the alleged specific offense; where criminal intent or guilty knowledge of wrongful or unlawful acts or conduct with respect to matters involved in the charge, are material, frequently applied in cases of uttering forged instruments, counterfeit coin or money, receiving stolen goods, and others, where guilty knowledge or criminal intent as to particular acts or conduct are material subjects of inquiry; and where the alleged offense and other claimed similar or separate offenses constitute parts of one transaction, or of a general scheme or plan, and are so related and connected that a complete account of the entire transaction of the one cannot fairly be given without also showing the other, or where the proof of the one necessarily involves proving the other."

Cases are there cited supporting such rule. The general rule that evidence of separate and similar offenses is not admissible against the accused on trial for another specific offense, and is not admissible as showing a probability that he committed the charged offense, is not disputed. It is claimed that the evidence was properly admissible as an exception to the general rule to show criminal intent. It, of course, is manifest that the evidence was not admissible to show with what intent the defendant took and appropriated and converted to his own use the moneys of the county, received by or intrusted to him. Such a criminal intent is manifest upon proof that he took the money and converted it to his own use. It certainly would not be admissible to show that the accused in a separate and distinct transaction stole money, or took and appropriated it to his own use, to show with what intent he stole the money charged in the information, or took and converted it to his own use. As well say it is competent to show that the accused committed a separate and distinct burglary to show with what intent he committed the charged burglary, or that he committed a separate and distinct robbery for the purpose of showing with what intent he committed the charged robbery. Evidence of other and distinct similar offenses may not be received for such purpose. State v.Spray, 174 Mo. 569, 74 S.W. 846. To hold it is, is a misconception of the exception to the general rule. The rule in such particular is that "where, from the nature of the offense under inquiry, proof of its commission as charged carries with it the evident implication of a criminal intent, evidence of the perpetration, or attempted perpetration of other like offenses will not be admitted." 8 R.C.L. 206; 16 C.J. 589, and notes to case of Sykes v. State, 105 Am. St. Rep. 995.

The correct rule as to the exception and as stated in 8 R.C.L. 201 is that:

"Whenever mental state, scienter, or quo animo constitutes an ingredient of the offense charged, evidence is admissible of acts, conduct or declarations of the accused which tend to establish such knowledge intention, or motive notwithstanding the fact that it may disclose a different crime in law. Where a felonious intent is an essential ingredient of the crime charged, and the act is claimed to have been innocently or accidentally done, or by mistake, when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain."

The rule is also to the same effect well stated and illustrated in 16 C.J. 586-589, and in notes to the case ofSykes v. State, supra, notes to case of People v.Molineux, 62 L.R.A. 193, and Jones on Evidence (2d Ed.) § 143; and such is the rule announced in State v. Bowen, supra. Had it at the trial in any manner been claimed or contended that the alterations, made on the records and files relating to and connected with the offense charged in the information, were made through mistake, or were accidentally made, or for some legitimate purpose, or for any reason were innocently done, by the accused, then under the authorities it would have been competent for the state to show that other similar alterations were made by him, although they related to or were connected with or disclosed another offense or offenses. But we here have no such a situation. In no particular did the accused claim or contend that the alterations were made through mistake, or for correction, or for any legitimate purpose, or that they otherwise were innocently made. What he claimed and contended at all times was that the alterations were not made by him. Proof that alterations not related to or connected with the charged offense was not competent to show that the alterations relating to and connected with the charged offense were made by the accused. The authorities do not permit that, and I do not undertsand it is claimed the evidence was admissible for such purpose.

Such other acts of criminality having no connection with the acts under investigation — being treated as relating to other separate offenses or transactions — were thus not legally relevant, and hence the evidence with respect to them should not have been permitted to prejudice the accused or to create a probability of guilt of the charged offense. Jones on Evidence (2d Ed.) § 143. And the authorities generally are to the effect that when the accused is put on trial for one offense he is to be convicted, if at all, by evidence which shows him guilty of that offense alone, and that proof of guilt of one or more of other similar offenses unconnected with that for which he is put on trial must be excluded, unless it comes within one or the other of the exceptions stated in State v. Bowen, supra, and as stated by the authorities there and hereinbefore referred to.

Thus, until some claim was made or evidence adduced to show that the alterations relating to the charged offense were made by the accused through mistake, or were made for some legitimate purpose, or were innocently made, the state was not required, and had not just cause, to anticipate that such a claim or defense might be made, and put in evidence in its case in chief to forestall it, and attempt to throw it down before something was urged or adduced to show such a claim or inference. Evidence of such other acts of a similar character, of course, may be used by the prosecution to rebut a defense of accident, mistake, or legitimate purpose, when in some manner claimed or urged by the defendant, or some circumstance or evidence shown with respect thereto (People v. Lonsdale, 122 Mich. 388, 81 N.W. 277;State v. Spray, supra; notes to the case of Sykes v.State, supra), except where scienter, or quo animo, constitutes an ingredient of the offense charged, such as, among others, receiving stolen goods or uttering or passing counterfeit money, or to show motive or a common scheme or plan.

It, however, is not claimed by the state that the alterations made with respect to and connected with the charged offense and the numerous other alterations made prior to and long subsequent thereto were but parts of a general scheme or plan, or that all such alterations related to or were connected with but one transaction, or that the unlawful and felonious taking and appropriation of the $200 charged in the information were but a part of a general and continuous peculation covering a period from May, 1922, to August, 1926, and hence all parts of one transaction, resulting in a taking and a conversion of more than $7,000. Nor does the prevailing opinion proceed on any such theory. The state contends, and the prevailing opinion proceeds on the theory, that the unlawful taking and appropriation of the charged $200 constituted a complete and separate offense; and on the record it is clear that the state at the trial proceeded on the theory that whatever moneys were taken and appropriated by the accused at other times, between May 1, 1922, and August 1926, especially those taken subsequent to the charged offense, constituted separate offenses from that charged in the information, and that an acquittal or conviction of the charged offense would not bar a prosecution for moneys unlawfully taken and appropriated by the accused at other times, especially not as to moneys taken and appropriated by him subsequent to the charged offense stated in the information as having been committed on July 23, 1923, when it is alleged $200 were taken and appropriated by the accused.

But in my judgment there is still a greater obstacle permitting an affirmance of the judgment of the court below. The court, with respect to the evidence considered, charged the jury:

"Evidence has been offered for the purpose of showing that other offenses were committed, consisting of false entries in the books of the county treasurer relating to matters in the redemption department of the county treasurer's office during the period when the defendant had charge of that department, and also in the effort to show misappropriation of various amounts of the funds of Salt Lake county.

"You are instructed that such evidence is to be considered only for certain restricted purposes, that is, such evidence is to be considered so far as it tends to prove or disprove any intent on the part of the defendant to commit the specific crime charged, or in so far as it tends to prove or disprove a common scheme or plan embracing the commission of other crimes so related to the one charged that the proof of one tends to establish the other, or in so far as it tends to establish the identity of the defendant as the person who committed the offense specifically charged in the information, if you find from the evidence that these other acts have any tendency so to do.

"It is for you to determine from a fair consideration of all the evidence in this case who made such wrong or false entries, and with what intent they were made, and whether or not they may not have been innocently made through mistake."

The charge was excepted to, the giving of it assigned as error, and the assignment discussed in connection with other assignments relating to the admission of the alleged objectionable evidence. I think the charge wrong, misleading, and prejudicial. By such charge the court did not direct the jury that evidence of facts or conduct relating to other offenses could be considered in determining with what intent, motive or purpose certain similar acts or conduct relating to the charged offense were done or committed. In other words, the court did not direct the jury that evidence of other offenses or acts committed by the defendant, consisting of false entries in books of the redemption department of the county treasurer — if committed by him — could be considered by the jury in determining with what intent or for what purpose or motive the defendant made the alterations, if made by him, relating to or connected with the charged offense. What the court charged in such respect was that evidence of the commission of "other offenses," consisting of false entries, and "misappropriation of various amounts of funds of Salt Lake county," could be considered as tending to show "intent on the part of the defendant to commit the specificcrime charged" (italics added).

If the defendant committed the "specific crime charged" — that is, if he unlawfully took the money and appropriated it to his own use — the very nature of such acts, and the commission of such an offense, carries with it the criminal intent, in which case, as has been seen, evidence of other like offenses is inadmissible. In other words, if the defendant took and appropriated the money to his own use — stole it — it is mere jargon to talk about with what intent he stole it, with what intent he "committed the specific offense charged." Such a charge is tantamount to directing the jury that evidence of the commission of "other offenses" may be considered in determining whether the defendant committed the charged offense, which the authorities teach may not be done. As well say that evidence of the commission "of other offenses" of robbery may be considered, to determine with what intent the defendant committed a charged specific offense of robbery, whether he committed it because he was "broke," or "hard up," or to donate the fruits of his crime to some eleemosynary institution.

Then the court further charged that evidence of the commission "of other offenses" may be considered by the jury in determining "who committed the offense specifically charged in the information," whether the defendant committed it, or whether another committed it; that is to say, in determining whether it was the defendant or another who committed the specific charged offense, the jury could consider evidence of "other offenses" of false entries, and of "misappropriation of funds of the county," and, too, note the language of the charge, regardless of whether such other offenses were committed, or such false entries or misappropriations made, by the defendant or not. And then the court left the whole matter to the jury to consider and determine, not only as to the weight to be given the evidence referred to, but in effect the competency and admissibility of it, whether it tended to prove or disprove this, that, or another thing, or what it tended to prove, or whether it tended to prove or disprove anything.

I cannot yield judicial sanction to such a charge. Thus, for the reasons stated, I think the judgment should be reversed and the case remanded for a new trial.

On the subject of good character I concur in the holding that the request of the defendant was properly refused. Portions of the request may be proper enough, but they were so coupled and connected with matters of mere argument as to render the request as a whole objectionable.

As stated in the prevailing opinion, no exception was taken to the charge which the court gave on the subject of good character. Since no exception was taken, I think the charge is not properly before us for review, and therefore no opinion ought to be expressed concerning it. The charge, however, in the prevailing opinion, is as fully and completely exhibited as though it were before us for review, and some opinions expressed concerning it. If the charge is exhibited as expressing a proper charge on the subject, or as constituting all that need be charged theron, I express my disapproval of it.

The first sentence of the charge is, as I think, erroneous, because embracing an unwarranted qualification or condition as to the admissibility or consideration of evidence of good character. A defendant may avail himself of such evidence, regardless of whether the presumption of innocence has or has not been overthrown, and regardless of whether the evidence on the part of the state is weak or strong, doubtful or convincing. In every criminal case a defendant is entitled to put good character in evidence as a relevant and material fact, regardless of the character or quality of the evidence adduced by the state, whether conclusive or inconclusive, direct or circumstantial. To tell a jury that the defendant is permitted to put in evidence of good character when the presumption of innocence has been overthrown is a misdirection. Such a direction is analogous to the old theory, long abandoned in this country, that evidence of good character is to be considered only in doubtful cases, and not when clear or convincing proof of guilt is shown. A defendant is entitled to put in such evidence and to have it considered in determining whether the presumption has or has not been overcome, and in determining his guilt or innocence of the offense charged.

The other portions of the charge do not enlighten or aid the jury on the subject. It but admonishes them that evidence of good character should be considered by them in conection with all the other evidence in the case. To tell the jury to consider such evidence, not to disregard it, is not telling them much of anything. The jury were in effect told that when the evidence was received. The rule in this as in many other jurisdictions is that it is the duty of the court to instruct the jury as to the purpose and effect of evidence of good character and the weight which the jury may give it, that it alone may be sufficient to create a reasonable doubt of the defendant's guilt, where without such evidence no such doubt might exist. State v. Brown,39 Utah 140, 115 P. 994, Ann. Cas. 1913E, 1, and notes; People v.Hancock, 7 Utah 170, 25 P. 1093; State v. Van Kuran,25 Utah 8, 69 P. 60; State v. Harris, 58 Utah 331, 199 P. 146;People v. Bell, 49 Cal. 485; People v. Shepardson,49 Cal. 629; People v. Doggett, 62 Cal. 27; People v.French, 137 Cal. 218, 69 P. 1063; State v. Cushing,14 Wash. 527, 45 P. 145, 53 Am. St. Rep. 883; People v. Elliott,163 N.Y. 11, 57 N.E. 103; Edginton v. U.S., 164 U.S. 361,17 S. Ct. 72, 41 L. Ed. 467.

The reason for the rule, and as stated in the Brown and in other cases there cited, is that a jury of inexperienced laymen, without assistance from the court, instructing them as to the purpose and effect of such evidence, and the weight which they may give it, could hardly be expected to apply the rules applicable to that kind of evidence, and if not so instructed, there is danger of incorrect inferences and of illogical conclusions, which may be made by jurors from such evidence. The rule as stated in the Brown Case is quoted and approved by the federal court in the case of Egan v. U.S., 52 App. D.C. 384, 287 F. 958, and in Jones v. U.S., 53 App. D.C. 138, 289 F. 536. It was again reviewed and considered at some length in the case of State v. Harris, supra, and again approved, the court there citing additional authorities. The request to charge considered in the Harris Case, and which the trial court refused, is fully set forth in the opinion in that case. This court by unanimous opinion held that the request complied and was in harmony with the opinion of the majority members of the court in the Brown Case, "and because we think the requested instruction was right in every way, it is approved once more," and the refusal of the trial court to give it was held over. The charge here, in my opinion, is not in harmony with such holding.

A later case from this jurisdiction, State v. Cerar,60 Utah 208, 207 P. 597, is cited by the state as supporting its contention, and that all that is necessary to charge on the subject is as was here charged. In my opinion, the Cerar Case does not support such view. The rule as announced in the Brown and in the Harris Cases, was in no particular in the Cerar Case overruled, modified, or even criticized, nor did the court there in any particular say anything in disapproval of it, nor was it held that what was charged in that case was all that was necessary to charge on the subject.

I thus think the rule announced in the Harris Case approving the rule in the Brown Case, is the established rule in this jurisdiction and should be followed. I am aware of some conflict in the authorities on the subject in other jurisdictions, and as noted in the cases annotated in Ann. Cas. 1913E, 16, and 10 A.L.R. 8, but I think the undoubted weight of authority supports the rule as established in this jurisdiction. At any rate that is the rule here and ought to be followed.