PLAINTIFF in error, hereinafter referred to as defendant, was convicted of the larceny of a yearling calf, owner unknown, and sentenced to the state penitentiary for a term of three to six years. To review that judgment he prosecutes this writ and assigns as error, inter alia, the giving of instruction No. 9. Since we conclude that this assignment is good and requires reversal we ignore the others as either wholly unfounded or referring to minor errors not likely to arise on another trial.
This prosecution was instituted under the following statute: "In the prosecution of any person charged with the larceny of any neat cattle the ownership of which is alleged to be unknown, proof of the failure, neglect or refusal of any person or persons who has butchered any neat animal as herein provided to produce a hide or, in lieu thereof, to give a true explanation as to the disposition made of the hide and to inform said officer or officers making demand where such hide is at the time of request for exhibition, shall be prima facie evidence of the guilt of such person or persons of the larceny of neat animal, and in all prosecutions for the larcenyof neat cattle, the owner being unknown, it shallnot be necessary in order to convict the defendant ordefendants for the people to prove motive, intent or purposeon the part of the accused or to identify the meatwith the said animal or animals alleged to be stolen orto prove that any specific animal of any owner; unknownor otherwise, has been lost." '35 C.S.A., c. 160, § 39. *Page 384
The information charged that defendant, "Did then and there unlawfully and feloniously steal, drive, lead, carry away and knowingly kill one head of neat cattle, to-wit: one yearling of the personal property, goods and chattels of the owner or owners unknown." Instruction No. 9 is the italicized portion of the statute, supra. Defendant contends that the statute is unconstitutional and if not, the instruction is not in conformity. The people maintain the contrary.
The jurors were told "that the burden is upon the people to prove every material allegation of the information to their satisfaction beyond a reasonable doubt." That "the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt." That "the information is a mere accusation and not in itself any evidence of guilt."
[1] 1. It will first be observed that if instruction No. 9 be taken at its face the people in this case were required to prove only that defendant had butchered an animal and had not produced the hide or given a true explanation of its disposition, or informed the officers where it could be found. Thus the presumption of innocence and the requirement for proof of the corpus delicti and criminal intent were junked.
2. It will next be observed that instruction No. 9, so construed, was in direct conflict with other instructions given the jury.
[2] 3. Mindful of the general rule that courts of review will not decide constitutional questions unless indispensable to a disposition of the case, we conclude such decision is not here indispensable, hence assume constitutionality and consider the proper construction of the statute and the applicability of instruction No. 9 thereto.
[3, 4] 4. It should be observed that the portion of the act stating those facts the proof of which shall constitute prima facie evidence of guilt, is divided from that portion which dispenses with proof of motive, intent or *Page 385 purpose, merely by a comma. The conclusion therefore is irresistible that the evidence which will dispense with the latter is dependent for its effect upon the evidence which will constitute prima facie proof of guilt. Otherwise there is a violation of the fundamental rule, doubly applicable in criminal cases, that one presumption cannot be based upon another. Since instruction No. 9 ignored this construction and omitted entirely all reference to the first portion of the statute it was clearly erroneous. Our interpretation is that, the portion given in instruction No. 9 can only be valid when conditioned upon the establishment beyond a reasonable doubt of the butchering of an animal and a failure to produce the hide, or in lieu thereof give the explanation or the information required by the act. Moreover, it is reasonably clear from this record that defendant did give such information. Certain it is that the people had received this information from some source because the witness McFadden, a tanner of Denver, testified that he received the hide from Elliott, produced it in court, and it was introduced as an exhibit, and Elliott himself testified that he had delivered the hide to McFadden in Denver. If so, this prosecution was not maintainable under said section 39.
For the fatal error above pointed out the judgment is reversed and the cause remanded for further proceeding in harmony herewith.
MR. JUSTICE JACKSON and MR. JUSTICE STONE dissent.