The Palmer Implement Company operated a store at Preston in Franklin county, Idaho. On or about May 6, 1947, some time between 8:30 p. m., May 6, 1947, and 6:30 a. m., May 7, 1947, the store was entered and merchandise of the value of about $1500 taken. A few days thereafter Dean William Kenworthy and Ralph Thomas Amick were arrested in Nevada and taken to Preston for trial on a charge of grand larceny.
On or about August 5, 1947, an information was filed by the prosecuting attorney of the county, charging Kenworthy and Amick with the crime of grand larceny. They were tried on that charge September 24, 1947, by the court sitting with a jury. The jury found Kenworthy guilty and Amick not guilty. Later and on October 10, 1947, the court entered judgment on the Kenworthy verdict of guilty. From that Judgment Kenworthy appealed to this court.
Appellant Kenworthy points out that during the course of the trial the state proved the explanation he made of his possession of the recently stolen property, but that the statefailed to disprove such explanation. Hence, that the evidence is insufficient to prove he committed the crime charged against him.
The question thus presented was also presented in State v. Darrah, 60 Idaho 479, 483, 485, 92 P.2d 143, 144. In that case it appears Darrah was in the conscious possession of a watch and case recently taken from the home of a Mrs. A.E. Gemmell; that Darrah, upon being arrested, first explained the watch and case had belonged to his mother and she had given it to him ten years before, but when it was suggested by an officer that he, the officer, could establish that the watch had been sold less than ten years before the burglary, Darrah then offered a second explanation, that "He would tell the truth now, that it was not his mother's watch, that he had bought it out near the viaduct."
In the case at bar, when first arrested, Kenworthy explained his possession of the recently stolen property by saying he bought it, but later changed that explanation to another, saying he got the stolen merchandise, in Los Angeles by trading a Cadillac car for it. In other words, Kenworthy gave two different explanations of his possession of the recently stolen property just as Darrah gave two different explanations. In the Darrah case, supra, this *Page 324 court, speaking through Mr. Justice Budge, said:
"The serious question presented upon this appeal is the sufficiency of the evidence to prove that appellant committed the crime of burglary. The corpus delicti was proven [as the corpus delicti was proven in the instant case], that is that a burglary had been committed, and it was also proven that appellant was in the conscious possession of recently stolen property [just as it was proven in the case at bar that Kenworthy was in the conscious possession of recently stolen property]. The state voluntarily introduced an alleged statement of appellant in which he stated that the watch and case had belonged to his mother and that she had given it to him ten years before. When it was suggested by an officer that he could establish that the watch had been sold less than ten years ago appellant made the further statement: 'He would tell the truth now, that it was not his mother's watch, that he had bought it out near the viaduct.'"
Continuing, this court pointed out:
"While the state proved the conscious possession by appellant of recently stolen property it also [as in the case at bar] proved the explanation by appellant, that is, that he had purchased the same from a person near the viaduct. There was no evidence showing or tending to show that his statement in this regard was false [also as in the case at bar]. It was neither an impossible or unreasonable explanation of his possession of the recently stolen property. As stated in State v. Pate, supra [43 Idaho 648, 253 P. 623], his contradictory statements may have been prompted 'by a consciousness of wrongdoing.' He may have acquired possession from one who had stolen the property of which fact he became aware upon his apprehension. We are of the opinion that there is not sufficient evidence in the record to connect the defendant with the burglary."
It is also complained the trial court erred in giving instruction No. 6, reading as follows:
"You are instructed that possession of recently stolen property is, in itself evidence from which the jury may find a verdict of guilty on the charge of grand larceny, unless such possession is reasonably and satisfactorily explained so as to indicate such possession to be innocent or lacking a felonious intent to deprive the owner of said property."
The correct rule is "that the possession of recently stolen property, when unexplained (the corpus delicti having been established otherwise than by possession), is acircumstance from which guilt may be inferred." State v. Vanek,59 Idaho 514, 520, 521, 84 P.2d 567, 570, and cases therein cited. The rule is not, as in effect instructed by the court, in the case at bar, "that possession of recently stolen property is, in itself evidence from which the jury *Page 325 may find a verdict of guilty" "unless satisfactorily explained". (Emphasis added)
In other words, the unexplained possession of recently stolen property merely justifies drawing an inference of guilt; it does not prove guilt beyond a reasonable doubt, nor does it in itself justify conviction. Hence, the instruction is both incorrect and confusing.
The judgment of conviction should be reversed and a new trial granted.
I am authorized to say that MILLER, J., concurs in this dissenting opinion.