State v. Keelen

¶1— Defendant assigns as error the action of the court in overruling his motion to require the state to make an election of the act that the state claimed constituted “the act of larceny or felonious taking — whether the time the car was turned over to Dooley near Hilgard, or the time it was taken from Hilton’s Garage, or at the time it was sold by Dooley to Teeters.” Defendant’s motion was made after the statement of the prosecuting attorney to the jury had been made and before any testimony was taken, and was based upon the rule that in criminal actions the prosecution is compelled and required to prove some particular act constituting the crime and rely upon the same for a conviction: State v. Eggleston, 45 Or. 346, 358 (77 Pac. 738); State v. Coss, 53 Or. 462, 467 (101 Pac. 193); State v. Hardin, 63 Or. 305, 308 (127 Pac. 789).

¶21. Whether in any case the court should compel the prosecution to elect the transaction upon which it will rely for conviction is largely a matter of judicial discretion. The court, upon seasonable ap*180plication, should compel an election when it appears that if the application is denied, the defendant will be prejudiced or he will be prevented from properly making his defense: 1 Bishop’s New Criminal Procedure, §§ 454, 459, 460, 462; State v. Hardin, 63 Or. 305, 308 (127 Pac. 789).

¶32. Defendant’s motion to elect was made before • any evidence had been introduced in the ease, and so far as appeared from the opening statement of the attorney for the state, the prosecution intended to rely upon the taking of the car from Hilton’s Garage as the transaction constituting the larceny charged in the indictment. It also appeared that the other matters referred to in the statement were collateral thereto, and that those transpiring before the car was taken from Hilton’s Garage would be depended upon to show the nonconsent' of the owner of the car to the taking, while those transpiring thereafter would be relied upon in part to show the relation of the ' defendant to Dooley. The situation presented did not require the court to compel the state to elect, and no error was committed in denying defendant’s motion.

¶43-6. Defendant requested, and the court refused, to give the following instruction:

“I instruct you that if you find from the evidence that the said George Robertson was the sole owner of the said automobile, and that he intrusted and delivered to the said C. E. Dooley the said automobile-to be safely kept by him, and that said C. E. Dooley retained the possession thereof, and placed the same in the custody of a garage claiming the right to possession, paying the garage fees, and that the same never passed from his possession until he delivered the same to the defendant T. J. Keelen to sell, and that the defendant T. J. Keelen sold the same and gave the price to the defendant O. E. Dooley, then I *181instruct yon that under the indictment in this cause there was no trespass, and it will be your duty to return a verdict of not guilty.”

¶5By the foregoing request and by requests made to direct the jury to acquit, defendant pressed upon the court the contention that Dooley was a bailee of the automobile within the meaning of the criminal statutes, and as the evidence showed the absence of a trespass by Dooley in obtaining possession of the car, the offense of Dooley, if any, was larceny by bailee, and not larceny; and that therefore the proof would not sustain the charge against the defendant of conspiring with Dooley in the commission of the offense of larceny. This contention is predicated upon the established rule that to prove one offense will not support a conviction upon an indictment charging a different offense. Defendant contends that the refusal of the court to direct the jury as requested was error.

¶6The evidence, the substance of which is recited in the foregoing statement, discloses that Dooley, jointly indicted with defendant, was given the bare charge or custody of the automobile by the owner, with the understanding that Dooley would at once return the same to the garage at La Grande, where Robertson had been keeping the same.

¶7The statute defining the crime of larceny by bailee was not intended to include that which is not larceny at common law: 1 Wharton’s Criminal Law (10 ed.), § 1027; State v. Muck You, 20 Or. 215 (25 Pac. 355). One. having the bare charge or custody of personal property, such as an agent or servant, who fraudulently converted such property to his own use was guilty of larceny at common law.

¶8*182“It is a clear maxim of the common law that where one has only the bare charge or custody of the goods of another, the legal possession remains in the owner, and such person may be guilty of trespass and larceny in fraudulently converting the same to his own use.” 17 R. C. L. 43.

¶9All the authorities support the foregoing text. See 2 Bishop’s Criminal Law, §§ 823, 824; 2 Wharton’s Criminal Law (11 ed.), secs. 1195, 1196; 20 Corpus Juris, 418, note 76; Holbrook v. State, 107 Ala. 154, (18 South. 109, 54 Am. St. Rep. 65); Colip v. State, 153 Ind. 584 (55 N. W. 739, 74 Am. St. Rep. 322); Dignowitty v. State, 17 Tex. 521 (67 Am. Dec. 670); Justices v. People, 90 N. Y. 12 (43 Am. Rep. 135); State v. Anderson, 25 Minn. 66 (33 Am. Rep. 455); Eggleston v. State, 129 Ala. 80 (30 South. 582, 87 Am. St. Rep. 31, 35, and note); Williams v. State, 165 Ind. 472, (75 N. E. 875, 2 L. R. A. (N. S.) 248); Chanock v. United States, 5 App. D. C. 54 (267 Fed. 612, 11 A. L. R. 799).

¶10It is sometimes difficult to distinguish between a possession incident to a bailment and a bare charge or custody of property, and in a few jurisdictions the distinction between custody and possession, as determining the offense, is not recognized: 9 R. C. L. 1267; 20 Corpus Juris, 419. However, the above citations disclose that in most jurisdictions the distinction is recognized and preserved. In the case of Shipp v. Patten, 123 Ky. 65 (93 S. W. 1033), the court quoted with approval from 1 Eobertson’s Ky. Criminal Law, Section 420, as follows:

“There is a difference between the terms ‘custody’ and ‘possession.’ Possession is the present right and power to control a thing. A person has the custody of property, as distinguished from the possession, where he merely has the care and charge of it for one who retains the right to control it, and who *183therefore retains constructive possession. Where goods are delivered by the master to his servant or other agent, he parts with the custody only, and not the possession; he has constructive possession. A servant, therefore, or other agent, who has merely the care and custody of his master’s goods, is guilty of larceny if he converts them to his own use without his master’s consent.”

¶11To the same effect, see Warmoth v. Commonwealth, 81 Ky. 133, 135; People v. Burr, 41 How. (N. Y.) 293; Emmerson v. State, 33 Tex. Crim. Rep. 89 (25 S. W. 289, 290).

¶12This court in Outcault Advertising Co. v. Brooks, 82 Or. 434 (158 Pac. 517, 161 Pac. 961), had under consideration the essentials of a bailment, and in the opinion in that case Mr. Chief Justice Moore quoted with approval from Elliott on .Contracts, Section 3073, as follows:

“The delivery must be such in every case as will give the bailee absolute and complete control of the property bailed.”

¶13Dooley’s authority over the automobile was restricted to the narrow limits of driving the car the short distance from Hilgard to La Grande and placing the same in the garage, and in no sense extended to control of or ownership or right therein adverse to Robertson, and his subsequent conversion of the car to his own use constituted larceny.

¶14If it be conceded that under any aspect of the evidence, Dooley was a bailee of the automobile, the bailment was terminated when the purpose of Dooley’s custody of the car was accomplished by delivery thereof to Hilton’s Garage, or at the latest, when M. J. Goss, at the direction of Robertson, had the car placed in “dead storage” in Hilton’s Garage: State v. Dooley (just decided).

¶15*184The requested instruction and defendant’s requests that the court direct the jury to acquit the defendant wholly ignore the undisputed evidence that the bailment, if one ever existed, was terminated before Dooley took the car from Hilton’s Garage to defendant’s place of business, and the court did not err in refusing to direct the jury as requested by defendant.

¶167. Defendant urged as an additional reason for granting his motion to direct the jury to acquit him that the evidence failed to show that defendant was associated with Dooley in the larceny of the car. We think there was sufficient evidence to fake the case to the jury upon this question, and no error was committed in refusing defendant’s motion.

¶17Defendant also claims that the court erred in its instruction .to the jury wherein they were directed in effect that the act or declaration of one conspirator, while engaged in or pursuant to the common- object or design, is the act or declaration of all. The court gave several instructions upon this point, and taken together they correctly state the law.

¶188. Defendant next complains that the court erred in giving the following instruction:

“I instruct you that if you believe from the evidence in this case, beyond a reasonable doubt, that the Ford automobile described in the indictment, was stolen from George Robertson, and that George Robertson was the owner thereof, and that shortly thereafter, the same was found in the possession of the defendant, and defendant has failed to explain how he obtained such possession, his failure to make such explanation may be considered by you as a circumstance tending to show defendant’s guilt, and given such weight as you may deem proper in connection with the other evidence in the case, I instruct you, however, that such explanation of the defendant is *185sufficient, if it raises a reasonable doubt in the minds of the jury as to the guilt of the defendant.”

¶19The defendant contends that the above instruction, upon which error is assigned, was not applicable in defendant’s case, for the reason that under the testimony his possession or custody of the automobile ceased to be evidence against him, and did not require him to make an explanation, and that therefore the direction given by the court,- without any basis in the testimony, in effect, told the jury that his possession was a suspicious circumstance that enmeshed him in a situation from which he must extricate himself.

¶209. In the trial upon a charge of larceny, evidence that recently stolen property was found in the possession of the defendant is circumstantial evidence to be considered by the jury with the other facts in evidence in the case in determining whether defendant is the person who stole the property described in the indictment : 2 Bishop’s New Criminal Procedure, § 739. The jury, though they are not bound to do so, may infer from such evidence, considered with all the other facts in evidence in the case, that the accused is the person who stole the property, and whether the jury will in a particular case draw such an inference from the evidence depends upon the character of the property, the nature of the possession and its proximity in time with the theft: State v. Pomeroy, 30 Or. 16, 25 (46 Pac. 797).

¶21It is the exclusive province of the jury to say by their verdict what inference, or whether any inference at all, shall be drawn from the fact of recent possession of stolen property: State v. Sally, 41 Or. 366 (70 Pac. 396).

¶2210. It is the recent possession of stolen property, and not a lame explanation, or the absence of expía*186nation, upon which the inference mentioned may be based: State v. Brinkley, 55 Or. 134, 138 (104 Pac. 893, 105 Pac. 708). The office of the explanation is to rebut the inference that arises, or may arise, from the fact of possession: 17 R. C. L. 74.

¶2311. The burden of proving the defendant guilty, beyond a reasonable doubt, continues with the prosecution throughout the trial. The state in a larceny case cannot be aided, except negatively, in maintaining that burden, nor relieved therefrom by the failure of one accused to make an explanation of the possession of stolen property, nor by any explanation made, however unsatisfactory: State v. Hutchison, 121 Minn. 405 (141 N. W. 483).

¶24The absence of reasonable explanation in such a case may aid the unfavorable inference to be drawn from recent possession of stolen property, just as and only as, any evidence is aided or strengthened by the failure of a party to produce evidence to rebut it, when apparently it is in his power to do so.

¶25The time and the circumstances under which both Dooley and defendant came into possession of the property and the facts of and connected with such possession were undisputed and were clearly established by direct evidence given by eye-witnesses, and nothing was left to inference in respect thereto: State v. Warden, 94 Mo. 648 (8 S. W. 233); State v. Spencer, 4 Penne. (Del.) 92 (53 Atl. 337).

¶26The direct evidence traced the possession to defendant and at the same time it clearly explained that he was not present when the car was taken, and that he did not actually take the same. The direct evidence further showed without contradiction that- Dooley alone took the car from the place where it was kept and removed it to defendant’s place of business, *187where it was offered for sale, and later sold by defendant without any claim or assertion of ownership by him.

¶27In the light of the evidence, the inference, if any, to be drawn from the facts surrounding defendant’s possession, including his explanations in respect thereto, related to the question of whether defendant was an accomplice of Dooley; the jury were authorized to consider those facts, together with all other facts in evidence in determining whether defendant conspired with Dooley to steal the car, or aided and abetted him in so doing, provided of course they were first satisfied from the evidence, beyond a reasonable doubt, that Dooley did steal the car, as charged.

¶28The instruction (if it was proper to give any at all upon that matter) should have confined the jury in their consideration of the evidence of defendant’s possession of the automobile, and his explanation concerning the same, to the determination of whether defendant was an accomplice of Dooley, as indicated; but instead the court broadly directed the jury that such evidence might be considered by them as a circumstance tending to show defendant’s guilt; thereby authorizing the jury to drop consideration of the conflicting evidence of ownership of the property, and of defendant’s connection with Dooley in the larceny thereof, and to rest a verdict of guilty on the confessed possession unsatisfactorily explained: State v. Humason, 5 Wash. 499 (32 Pac. 111). This was prejudicial error, for which the judgment of the Circuit Court should be reversed.

¶29We have examined the record in connection with the other errors assigned and relied upon by defendant, and conclude that no error was committed by the court in respect thereto.

¶30*188The judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court for a new. trial. Reversed and Remanded.

¶31Rehearing denied February 7, 1922.

¶32On Petition for Rehearing.

¶33(204 Pac. 162.)

¶34In Banc.

¶35Rehearing Denied.

¶36— The attorneys for the state have filed a petition for rehearing. Therein it is suggested that the conclusion of the court in its opinion herein, that the instruction given by the trial court concerning the possession of recently stolen property was not applicable under the facts of this case, ignores the abrogation of the distinction between accessories before the fact and principals in crimes accomplished by Sections 1458 and 2370, Or. L.

¶3712. The opinion herein does not have the effect claimed. Abrogation of the distinction between accessories before the fact and principals in crimes did not change the rules of law for the guidance of the jury in determining the weight and effect of the evidence addressed to them. Although one who aids and abets in the commission of a crime, though not present, is a principal under the statute, and should be tried and punished as such, yet when such person is tried separately, and the evidence shows, as it did in this case, that he was not present at the commissiort of the crime charged, and that he did not directly commit the acts constituting the crime, and that such acts were committed by his codefendant, it is necessary *189for the state in order to secure a conviction, to produce evidence which satisfies the jury beyond a reasonable doubt, that the defendant did aid or abet, counsel or advise, the commission of the acts constituting the crime; if the jury is so satisfied, they are authorized to return a verdict of guilty against the defendant as charged, and this -satisfies the statute, for the defendant in every case is charged as a principal.

¶3813. Under the evidence in this case an important issue of fact was presented for determination by the jury, to wit: Did defendant aid and abet his codefendant Dooley in the commission of the acts constituting the crime? It was necessary for the state to establish the affirmative of that issue, beyond a reasonable doubt, before the jury was warranted in finding the defendant guilty. The statute abrogating the distinction between accessories and principals in crime did not eliminate that issue nor relieve the state from establishing the affirmative thereof; the character of evidence and the degree of proof requisite to discharge the burden resting upon the state in respect thereto was not changed or diminished by the statute.

¶3914. Defendant’s possession of the property was an item of evidence to be considered by the jury with the other evidence in the case, in determining whether defendant did aid and abet Dooley in the commission of the acts constituting the crime.

¶40But it was improper to instruct the jury concerning such possession, as though the evidence was susceptible to the construction (squarely opposed to the uncontradicted direct evidence) that defendant committed such acts, or was present when they were committed. This was the vice of the instruction given *190by the Circuit Court and for which the case is reversed.

¶41In the petition for rehearing the attention of the court is directed to an instruction almost identical in language, which was approved by this court, in the case of State v. Minnick, 54 Or. 86 (102 Pac. 605). In view of our conclusion that such an instruction was not applicable in this case under the evidence adduced upon trial, the approval of the instruction in the Minnick case is not material here.

¶4215. It may be well, however, to refer to a fault common both to the instruction in the Minnick case and the one given by the court in this case, which should be avoided by trial courts when instructing juries, particularly in cases where more than one conclusion may be drawn from the evidence. The instruction in each contains the phrase, “his failure to make such explanation may be considered by you as a circumstance tending to show defendant’s guilt.”

¶43In the case of State v. Maloney, 27 Or. 53 (39 Pac. 398), the court, in reversing the case, held that it was error for the court to instruct the jury that the evidence, or any particular item thereof, tended to show the guilt of the defendant. Instructions to the effect that the evidence tended to show the guilt of a defendant, or any other fact in issue in a case, have been criticised by this court in numerous decisions: Stale v. Sally, 41 Or. 366, 370 (70 Pac. 396); State v. Osborne, 54 Or. 289, 303 (103 Pac. 62, 20 Ann. Cas. 627); State v. Rader, 62 Or. 37, 40 (124 Pac. 195); Saratoga Inv. Co. v. Kern, 76 Or. 243, 249 (148 Pac. 1125); De War v. First National Bank of Roseburg, 88 Or. 541, 547 (171 Pac. 1106). Finally, in the case of State v. McLeivnan, 82 Or. 621 (162 Pac. 838), it was pointed out that the testimony in that case was susceptible to *191several conclusions besides that of the guilt of the defendant, and it was declared to be reversible error for the trial court in such a case to direct the jury that the testimony “tends to prove” or points in a certain direction when any other conclusion may be drawn from it with equal propriety. The court, speaking through Mr. Chief Justice Burnett, said:

“It is only where the testimony points to a definite conclusion and to no other that the court is authorized to say to the jury that it ‘tends’ to prove anything. If the conclusion to be drawn from the circumstance in question is equivocal, it is for the jury alone to say what influence and what direction shall be accorded to the evidence on the point. What is here written on this point is not in conflict with State v. Brown, 28 Or. 147, 163 (41 Pac. 1042), Coos Bay R. R. Co. v. Siglin, 34 Or. 80, 84 (53 Pac. 504), and Smitson v. Southern Pacific Co., 37 Or. 74, 104 (60 Pac. 907), where it was decided, in substance, that under proper circumstances the court may say to the jury that there is testimony ‘tending to prove’ certain things. In those cases the evidence, if believed, had no double or treble significance as the testimony under consideration here.”

¶4416. Counsel for the state request the court to state . whether or not upon a new trial any instruction should be given on the subject of the possession by defendant of the automobile charged to have been stolen, and if one should be given] exactly what it should contain.

¶45The matters of law that should be stated to a jury depend not only upon the evidence adduced at the trial, but upon the manner in which the trial is conducted and also upon the requests for instructions that may be presented by the respective parties; therefore whether a particular instruction, or an instruction upon a particular matter, should be given in the *192case, cannot be accurately determined in advance of the trial and before the evidence has been submitted.

¶46In this connection, the attention of counsel' is directed to the following excerpt from the opinion:

“The jury were authorized to consider those facts [the facts surrounding defendant’s possession, including his explanations in respect thereto] together with all other facts in evidence in determining whether defendant conspired with Dooley to steal the car, or aided and abetted him in so doing, provided of course they were first satisfied from the evidence, beyond a reasonable doubt, that Dooley did steal the car, as charged.”

¶47The petition for rehearing is denied.

¶48Rehearing Denied.