State v. Peterson , 110 Utah 413 ( 1946 )

I agree with this decision to the extent hereinafter indicated. Undoubtedly the evidence offered to prove possession and an unsatisfactory explanation of possession is offered primarily for the purpose of identifying the thief, and not for the purpose of proving that the property was stolen. Naturally one is not concerned with the identity of a thief until there is proof that there was a theft. It is possible that evidence to support proof of possession and unsatisfactory explanation thereof may have probative value for another purpose — that of proving a felonious intent in the original taking of the property. When it has such probative value it is admissible for such purpose quite aside from its probative value as to identity of the thief. In this case, however, I do not agree that the evidence was sufficient to go to the jury upon the question of a felonious intent in the original taking. The heifer was taken under an expressed claim of right. To seriously question that claim the evidence should be sufficiently strong to lead reasonable minds to a belief that the claim of right was merely a camouflage or fraud to cloak an intent to steal the heifer. The evidence falls far short of that in my estimation.

One more point: I think a witness is justified in concluding from a lack of the discussion of the reputation of an individual in his community that his reputation is good, and so testifying; but when he grounds his opinion upon his dealings with that individual, rather than upon facts which evidence reputation, he is not giving an opinion of the individual's reputation, but is giving his opinion of the individual himself. To put it another way: Personal dealings between the accused and the witness have probative value in emphasizing the acquaintanceship between the two as being such that the witness would very likely have knowledge of accused's reputation either from hearing it discussed or from the negative standpoint of never hearing anything against accused. But, because those dealings may have turned out satisfactory or unsatisfactory to the witness is no foundation for an opinion by the witness as to accused's reputation. I think this is what the lower court had in mind when he ruled out this reputation evidence.

I concur in the holding of the prevailing opinion that the conduct of the juror Smith was not such as to amount to misconduct, bias or prejudice under our statutes. I concur with Chief Justice Larson's opinion as far as it goes but in two respects I think it should have gone farther.

I think the evidence was insufficient to show a felonious intent and therefore the court should have directed a verdict of "Not Guilty." When Baxter removed the cattle from defendant's field, defendant went to him and claimed this heifer. This indicates that the claim was made in good faith. Had he known that it was not his heifer and took it with the intention of stealing it, he would not have called it to Baxter's attention that he was taking it but would have done so with as little notoriety as possible. Under all the facts and circumstances disclosed by the evidence, defendant's actions in taking this heifer are consistent with an honest belief that this heifer belonged to him. Members of his family testified that prior to the spring of 1944, on account of ill health, defendant had disposed of his sheep and at the request of his son, during that spring purchased about 40 head of black and white heifers about the age, color and size of the one in question; that the fences were bad and these heifers became mixed with others; that among the heifers purchased was one bought from a man named Jensen in Collinston; that the heifer which he took had frozen ears and otherwise resembled the Jensen heifer and that he took this heifer believing in good faith that it was the one he had purchased from Jensen. I believe that under these facts and all other surrounding facts and circumstances a reasonable mind could not be persuaded beyond a reasonable doubt that the defendant, at the time of the taking, knew this was not his heifer and took it with the intention of stealing the same.

I also agree, for the reasons stated in the prevailing opinion, that the court erred in instructing them on the question of unexplained possession of recently stolen property. I think it is an error to so instruct even in cases where the rule does apply. What constitutes a prima facie case is a question of law for the court to determine. Ordinarily the court determines that question by submitting the case to the jury on all the facts and circumstances of the case without pointing out what facts are sufficient to constitute a prima facie case, or by directing a verdict. There is no more reason why the court should point out to the jury that unexplained possession of recently stolen property constitutes a prima facie case than that it should in any other case point out what facts it considers to be sufficent for that purpose. To do so in my opinion violates the well-recognized rule against the court commenting on the evidence. Hawley v.Corey, 9 Utah 175, 33 P. 695. State v. Green, 78 Utah 580,6 P.2d 177, as well as the rule against emphasizing parts of the evidence, Jenkins v. Stephens, 64 Utah 307, 231 P. 112. Also it is subject to the further objection, which was so ably pointed out by Mr. Justice Straup in State v. Barretta, 47 Utah 479,155 P. 343, that the jury is apt to be misled into thinking that the court is instructing them that if they find the existence of the necessary facts on which this rule is based they must find the defendant guilty, rather than that they may so find only in case all of the facts and circumstances of the case convinces them of his guilt beyond a reasonable doubt.