There are two important questions presented on this appeal: First, was the possession of the Miller cow by the appellant, felonious? Second, did the admission of "evidence tending to show other larcenies wholly independent from the one charged in the information," constitute reversible error?
On the first question, the material facts and circumstances in the case at bar are identical with those in the case ofState v. Seymour, 7 Idaho 257, 61 P. 1033. In the Seymour case, as in the instant case, possession of the animal alleged to have been stolen was admitted. Seymour testified that he employed one Williams to purchase livestock for him and to drive the livestock so purchased to his place of business or slaughter-house; that the stolen animal was delivered by Williams to him and that he paid Williams for it; a man named Bruce testified that he was present when "Williams purchased the animal"; Williams, from whom Seymour claimed to have purchased the stolen animal, was not present at the trial, nor does it appear that Seymour either took a receipt from or was given a bill of sale by Williams. In the case at bar, Mason was not present at the trial and appellant did not obtain a receipt nor get a bill of sale from Mason. So that in the Seymour case, Williams was just as much an imaginary or fictitious person as it is contended Mason is in the instant case. Moreover, in the Seymour case, it was shown that at his preliminary hearing Seymour gave bail for his appearance at the next term of the district court, that he fled and did not appear and that his bail was forfeited; that a reward was offered for his apprehension and that he was subsequently arrested, tried, and convicted, which conviction this court reversed. Whereas, in the case at bar, appellant did not flee; on the other hand, when he learned that the officers were looking for the Miller and Culver cows, and at a time when the officers did not know where they could be found, appellant told the sheriff where they were. Furthermore, and as above stated, Seymour testified that "Williams" was employed by him for the express purpose of purchasing livestock for him, and that he, Seymour, paid "Williams" (his own employee) for the stolen animal. It is more damaging that appellant failed to produce Mason, practically a *Page 426 stranger, at his trial, than that Seymour failed to produce "Williams," his own employee, at his trial? In both cases, the Seymour case, supra, and the instant case, the defendants, respectively, admitted had possession of recently stolen property. Seymour explained his possession by testifying that he purchased from his own employee, "Williams," the animal he was charged with having stolen, and in the instant case, appellant, although he did not testify, explained his possession of the animal he is charged with having stolen by showing that such animal was purchased from a virtual stranger named Mason. Neither Seymour nor appellant produced the seller.
In the course of the discussion of the law applicable to cases involving the possession of recently stolen property, it is stated in the majority opinion that "a fair statement of the law as distinguished from a mere application of the rule to the facts of a particular case is found in State v. Curtis, supra (29 Idaho 724, 161 P. 578), at page 733." In that case, it appears Curtis was charged with and convicted of the crime of presenting for payment to the county treasurer of Blaine county, certain false and fraudulent claims. The claims were based upon certain allegedly false and fraudulent bonds. Curtis was not charged with the larceny of the bonds. He was charged with presenting false claims based upon them. And in a further discussion of the law applicable to cases involving the possession of recently stolen property, it also is stated in the majority opinion that "a distinguishing feature between the cause herein and State v. Sullivan, supra (34 Idaho 68,199 P. 647, 17 A.L.R. 902), is that therein the possession was not exclusive and herein it is." In the Sullivan case, supra, Sullivan and others, hoboes, were charged with and convicted of the crime of burglary. The goods were found in a hobo camp where all the defendants happened to be at the time the officer found the goods. This court, in that case, said:
"In the case at bar, all of the defendants were tried together and convicted of burglary in the first degree, notwithstanding the fact that a part of them had asked for a separate trial. The record wholly fails to connect some of these defendants with the possession of the goods alleged to *Page 427 have been stolen, or with any of the articles taken from this camp and offered as exhibits in the case, further than to show that all of the defendants, together with one Murphy, who has not been apprehended, were stopping at this camp, which seems to have been a common rendezvous for 'hoboes' at the time of their arrest. The general rule that the possession of stolen property is evidence of guilt is limited by the rule that to warrant an inference of guilt it must be shown that the possession is personal, and that it involves a distinct and conscious possession by the accused."
It is clear that what this court held in the Sullivan case,supra, is merely this: That it would not (and it did not) affirm the conviction of a defendant charged with and convicted along with others of the crime of burglary, where the evidence failed to show "a distinct and conscious possession" of recently stolen goods by such defendant.
And an attempt is made in the majority opinion to "connect" or "link" appellant with the theft of a cow owned by Culver as well as with the theft of the Miller cow, based upon testimony indicating that the Culver cow was stolen on the same night the Miller cow was taken, to wit, May 26, 1935, and testimony that appellant's car was seen standing on Broadway, one of the principal streets of Boise, on the night of June 8th, 1935 (there is no evidence, however, that appellant was in the car), some 13 days after it is claimed the Miller and Culver cows were stolen, and testimony that one of the tires on appellant's trailer was a "thirty by three and a half" Goodyear Pathfinder, and that one of the tracks made in the dust by a trailer used to haul the Miller cow away was similar to the tread of the said Goodyear Pathfinder tire taken from appellant's trailer and admitted in evidence. I confess that I do not understand just how the fact, if it be a fact, that the Culver and Miller cows were stolen on the same night, and that appellant's car was seen standing on Broadway some 13 days later, and that one of the tracks made in the dust, as above stated, appeared to be similar to the tread of said Goodyear Pathfinder, sufficiently serve to "connect" or "link" appellant with the larceny of either cow, particularly in view of the uncontradicted evidence that "there are quite a few of them (Goodyear Pathfinders) *Page 428 sold," thus making it largely a matter of guess and conjecture as to whether it was the Goodyear Pathfinder tire owned by appellant that made the tracks in the dust, or some other Goodyear Pathfinder tire owned by any one of quite a few other people.
Upon the second trial, apparently for the purpose of contradicting, by circumstantial evidence, the positive testimony given in behalf of appellant to the effect that he had purchased the Miller cow from a man named Fred Mason, by attempting to show that he, Mason, was a creature of appellant's imagination, a general delivery clerk in the Boise Post Office testified in behalf of the State that he did notremember delivering any mail to a Fred Mason during the year 1935. In a town the size of Boise, many people get their mail at general delivery; therefore, it would be quite impossible for a general delivery clerk to remember the name of every person so receiving mail, unless we clothe the witness with supernatural powers, and there is nothing in the record giving the slightest hint that the witness is so endowed. Then, and for the same purpose, a deputy sheriff testified that he had checked the post office at Eagle, Star, Ustick, and Kuna, and that there was no record of any mail having been delivered to a Fred Mason. Appellant objected to that testimony, before it was given, upon the ground that the record, if any, was the best evidence, which objection was overruled. If a record of mail deliveries was kept at the towns above named (which is not probable, because the record here fails to show such a record was kept), then the record was the best evidence, but whether a record was, or was not kept, the testimony of the deputy sheriff was mere hearsay and, consequently, inadmissible. It was also testified in behalf of the state that during the year 1935 drivers' licenses had been issued to but two persons named "Fred Mason"; that one was a probate judge at St. Anthony and the other a farmer at Bonners Ferry, but the record in that connection also shows that registration for drivers' licenses was not made nor required until July 1, 1935, more than a month after the alleged larceny of the Miller cow. Another witness testified in behalf of the State (Chief Clerk of the Motor Vehicle Department) that the records of the department showed that *Page 429 the only person by the name of Fred Mason in whose name a motor vehicle was registered, was the above-named Fred Mason residing at Bonners Perry, but upon cross-examination, that witness also testified that the Governor, by extensions, had extended the time within which registrations would be required, to the 31st day of May, 1935, that is to say, registration of motor vehicles was not required until five days after the alleged theft of the Miller cow. Is that hearsay, uncertain, negative, circumstantial, evidence sufficient to contradict the positive testimony that appellant purchased the Miller cow from Fred Mason?
Turning now to the second question: Did the admission of the "evidence tending to show other larcenies wholly independent from the one charged in the information," constitute reversible error? The record before us shows that the case at bar was tried twice in the district court; that the first trial occurred in December, 1935, with the result that the jury disagreed and was discharged; that the case was next tried in February, 1936; that upon the first trial Oliver A. Culver, Neal Scott, and Carl Beeson did not testify, but that on the second trial they did testify. Upon the second trial it was testified that Culver's cow apparently was stolen on the same night the Miller cow was taken; that Neal Scott "lost" his cow on May 30th, 1935, and that Carl Beeson's cow was stolen June 8th, 1935. Did the admission of such evidence constitute prejudicial error? That, as a matter of fact, it actually did prejudice the minds of the jury sufficiently to induce it to find the appellant guilty, is established beyond any doubt by reason of the fact that, upon the first trial, in the absence of that evidence, the jury disagreed, and upon the second trial, by the use of that evidence, appellant was convicted, showing very clearly and conclusively the State could not have convicted appellant without that evidence. But appellant having made no objection to that evidence, is this court under any duty and does it possess the power to protect the fundamental rights of one accused of the commission of a crime, to the end that such person shall have a fair and impartial trial? In a case identical with the case at bar (State v. Blank, 33 Idaho 730, 734, 197 P. 821), where "counsel for appellant took no proper exceptions," *Page 430 this court reversed the judgment of conviction and in doing so, rested its opinion upon State v. Garcia, 19 N.M. 414,143 P. 1012 (on rehearing), quoting therefrom, so far as the above stated point is concerned, as follows:
"There exists in every court . . . . an inherent power to see that a man's fundamental rights are protected in every case. Where a man's fundamental rights have been violated, while he may be precluded by the terms of the statute or rules of appellate procedure from insisting in this court upon relief from the same, this court has the power, in its discretion, to relieve him and to see that injustice is not done. The restrictions of the statute apply to the parties, not to this court."
In a discussion of the second question, respondent frankly states in its brief that:
"The state prosecuted this case on the theory that appellant was engaged in systematic and continuous cattle stealing, and that the Miller theft is only one of a chain of thefts,"
and upon that theory it was contended in the trial court, and urged here, that evidence of other alleged thefts was admissible, for example, the alleged theft June 8, 1935, of a cow owned by Carl Beeson, and the alleged theft May 30, 1935, of a cow owned by Neal Scott (in all about six head of cattle, involving six alleged separate and independent larcenies), it being insisted in the lower court and on this appeal that evidence of larcenies, other than that alleged in the information, is admissible under the rule announced by this court in State v. Emory, 55 Idaho 649, 46 P.2d 67, hereinafter examined. The defense was to the effect that appellant was engaged in the business of buying cattle and that he bought the Miller cow in the usual course of business from a man by the name of Fred Mason. It was insisted by appellant in the trial court and contended here that "evidence tending to show other larcenies wholly independent from the one charged in the information is inadmissible and its admission constitutes reversible error." It is needless to say that the state is bound by the theory upon which it prosecuted appellant in the trial court. *Page 431
This court passed upon that question in the well considered case of State v. Blank, supra. In that case, Blank was charged with the larceny of a colt, and during the course of the trial, evidence was admitted that Blank "had committed larcenies other than and independent of the one charged in the information." It was held to be reversible error. Mr. Justice Budge, in a very able opinion, concurring specially, said, among other things:
"Furthermore, the state was permitted, in flagrant violation of every known rule of evidence, to introduce proof tending to establish that appellant came into possession of the sorrel mare (a mare which had foaled a black colt answering the description of the colt alleged to have been stolen) wrongfully, and that he (Blank) had committed larcenies other than and independent of the one charged in the information. . . . . The rule is well established that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is inadmissible."
In another, and later, well considered case (State v. Garney,45 Idaho 768, 265 P. 668), this court, speaking through Mr. Justice Budge, held that:
"The general rule is, that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon trial, must be excluded."
And in the very recent case of State v. Machen, 56 Idaho 755,58 P.2d 1246, this court, again speaking through Mr. Justice Budge, approved and strongly adhered to the rule announced in State v. Garney, supra.
As hereinbefore pointed out, the state, in support of its contention that evidence of other independent larcenies is admissible, relied in the trial court, and relies in this court, upon State v. Emory, supra. In that case, Emory was charged with the crime of asking for and receiving a bribe from one Rose Sage. In trial court admitted evidence of *Page 432 bribes claimed by the state to have been received by Emory at times and from persons other than charged in the indictment, as showing a general design and system on the part of Emory to ask for and receive bribes under like or similar circumstances with those alleged in the indictment, under the theory that if Emory had or practiced a general system of asking for and receiving bribes, it would be more probable that he had asked for and received a bribe from the said Rose Sage, as charged in the indictment; and this court held that the admission of such evidence did not constitute prejudicial error. It was clearly established that Emory had asked for and received bribes from persons other than Rose Sage, under the same kind of agreement as that made with Rose Sage. To be more explicit, it was charged in the indictment, and proved upon the trial, that Emory had asked for and received a bribe from the said Rose Sage upon an agreement or understanding that he would protect her in the unlawful operation of her hotel business. And then the trial court admitted evidence that Emory had asked for and received bribes from persons other than Rose Sage, under an agreement that, in consideration of the payment of bribes, Emory (a police officer of the city of Boise) would also protect such other persons in the unlawful operation of certain businesses. And this court held, as above stated, that the admission of evidence that Emory had made agreements with other persons, identical with the agreement made with Rose Sage, under which such other persons had paid, and Emory had received, bribes, for protection, did not constitute reversible error. It is at once apparent that the facts in the case at bar do not bring it within the rule announced in the Emory case,supra. On the other hand, it is clear that such facts do bring the instant case within the rule laid down in State v. Blank,supra.
To summarize: on the question of fact as to whether the possession of the Miller cow by appellant was felonious, I have fully set forth all the testimony in the record, both the hearsay and the negative, which might, in any way, be said to contradict the positive evidence that appellant purchased the Miller cow from Fred Mason. And as to the law, the majority opinion recognizes the confusion in the decisions of this court on the question of the sufficiency of an *Page 433 explanation of possession of recently stolen property. For example: State v. Ireland (a grand larceny case), 9 Idaho 686,692, 75 P. 257, holds that: "The common defense, in such cases, is the purchase of the property stolen from an unknown person, and the jury are the judges of the weight to be given to such evidence, and we think they gave it in this case the full weight it deserved." While on the other hand, in State v.Seymour, supra (also a grand larceny case), this court said that Seymour "explained his possession of said animal by his own testimony and that of the witness Bruce; and, if the facts as stated by himself and witness Bruce are true, the defendant is not guilty of the crime of which he was convicted," and held that "where a reasonable explanation is given, and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury cannot arbitrarily ignore such evidence." In the case at bar there is neither impeaching nor conflicting evidence, other than the hearsay, negative, uncertain, "circumstantial," evidence hereinbefore set forth, whereas in the Seymour case, supra, it was shown that he fled, in regard to which this court said: "While the flight of one accused of crime is very generally regarded as an evidence of guilt, it has never been held as conclusive." On that phase of the instant case (possession of recently stolen property), the real question presented here is, May a jury ignore positive evidence of the purchase of the Miller cow (not contradicted by direct evidence), and convict the appellant upon hearsay, very doubtful, extremely uncertain, "circumstantial," evidence? Evidence which vaguely, if at all, contradicts the positive evidence that appellant purchased the Miller cow from Mason. If so, then the Seymour case, supra, and like cases ought to be reversed, or to say the least, modified. But no matter what view one may take of this case so far as the question of the sufficiency of appellant's explanation of the possession of the cow in question is concerned, there remains for determination the important and decisive question (which the majority decline to pass upon) as to whether the admission of evidence of other larcenies (excluding the admission of evidence in regard to the Culver cow), in no way connected with the *Page 434 larceny of the Miller cow, constitutes reversible error. If not, then State v. Blank, State v. Garney, and State v. Machen,supra, ought to be reversed. If so, then the judgment of conviction in the case at bar ought to be reversed.