The matter here in controversy is the legal propriety of an instruction given by the trial court at the request of the State. That instruction, numbered 2, is as follows:
"The court instructs the jury that if you find and believe from the evidence that the property mentioned in the information, to-wit, one twelve ounce duck canvas tarpaulin, twenty-four feet wide by thirty feet long, was the property of J.C. Williamson and that it was stolen in said County of Vernon in theInstruction State of Missouri, on or about the ____ day ofGiven. January, 1920, and that recently after it was stolen the same was found in the exclusive possession of the defendant, William Swarens, then he is presumed to be the thief and the burden is upon him to overcome such presumption, and unless such possession is satisfactorily accounted for in a manner consistent with the innocence of the defendant by evidence in the case, or the circumstances attending such possession, or by the habits and manner of life of the defendant, or unless such presumption is rebutted by evidence showing the good character of the defendant, or by evidence that he was at some other place when said property was stolen, or by the weight of all the evidence before you, you should find the defendant guilty, as charged in the information." *Page 161
I. The correctness of this instruction from various angles is discussed and questioned in the majority opinion and in the opinions of two of my associates. I differ with them in both their reasoning and conclusions; and I will endeavor to demonstrate, as briefly as the subject will permit, theStare reasons for my difference. Neither in its letter norDecisis. its context is the instruction subject to tenable objections. As prefatory to more substantial reasons, something might be said of the time-honored presence of this instruction in our jurisprudence since the rendering of the opinion in State v. Floyd, 15 Mo. 349, to the present time. This, on the score that in the law, as in literature, "out of the old field, as men say, cometh the new corn." Thus hallowed by time and use, it has wrought no wrong to the innocent, nor has it imposed an onerous burden upon the accused. Affording, as it does, an opportunity for a fair trial, something more than diverse rulings in other jurisdictions or differences of opinion among ourselves as to the character of the presumption the instruction presents, should be advanced to authorize its condemnation.
It is contended in the majority opinion that the instruction assumes the commission of the crime in using the words "after it was stolen." This phrase must necessarily be construed in connection with what precedes it. In the beginning of this instruction, the jury is expressly told that "they must find and believe from the evidence" as a conditionAssumption of precedent to a verdict of guilty that theDisputed Fact. tarpaulin was stolen. Thus directed, there is no reasonable ground for even the lay mind, however unfamiliar it may be with the rules of interpretation, to understand that the subsequent words "after it was stolen" are not meant to assume the commission of the theft, but that such words are to be construed in connection with and subordinate to the finding necessary to be made by the jury before they can find that the crime was committed. *Page 162 The general rule in regard to the manner in which instructions are to be construed is not inappropriate in this connection, viz: that a clause in an instruction is not to be held erroneous unless it is so after reading it in connection with the balance of the instruction of which it forms a part. [Andrew v. Linebaugh, 260 Mo. 623; State v. Parmenter, 278 Mo. 532; State v. Lippman, 222 S.W. (Mo.) 436.]
Like reasoning will apply to the futility of the further contention in the majority opinion as to the use of the words "when said property was stolen" in stating the defendant's right to the proof of an alibi in rebuttal of the presumption of guilt arising from the possession of the property recently after it was alleged to have been stolen. Nor is there merit in the contention that there was error in the use of the words "by the weight of all of the evidence" in defining the quantum of proof necessary to a finding of guilty. What constituted the weight of the evidence, as the phrase was here used, was correctly defined in other instructions, and the jury was not left in doubt as to what was meant. These other instructions were in regard to the question of reasonable doubt and the weight and value to be given the testimony, which were in the stereotype forms often approved by this court. Thus instructed, the jury could not have been misled as to what constituted the weight of the testimony. No undue burden having been placed on the defendant by the use of the words in question, he has no ground of complaint in this regard.
The contention that the instruction is erroneous in not stating the statutory value necessary to constitute grand larceny is based on the theory that the instruction is drawn to cover the entire case and hence it should include all evidentiary facts. If the same rule be applied in criminal cases that hasCovering sometimes found application in civil cases as toEntire Case. the requirements of instructions so drawn as to cover the entire case, it would not be applicable in this instance. The instruction does not purport to cover the *Page 163 entire case. The description of the property therein is simply preliminary to a statement of the probative force of the presumption arising from the recent possession of stolen property. Neither this description nor the authority given the jury to return a verdict of guilty upon a failure of the defendant to rebut the presumption can be construed to cover the entire case.
The instruction which more nearly covers the entire case, under the theory of the majority opinion, is that numbered 1, which states, among other essentials, that the jury must find that the property was of the value of thirty dollars or more to authorize a verdict of guilty. This constituted a sufficient statement of the value of the property under the well-established rule that the instructions are to be considered as a whole, and when so considered, if they consistently and correctly declare the law applicable to the case under the evidence, they are not obnoxious to criticism. All that a defendant can require is that his case be fairly and fully presented. When so presented no objection thereto should be sustained. When a case is thus submitted, it is beside the mark to contend that error has been committed in submitting the issues in several rather than one instruction. [State v. Burgess, 193 S.W. (Mo.) 821; State v. Murray, 193 S.W. (Mo.) 830; State v. Arnett, 210 S.W. (Mo.) 82; State v. Reppley,278 Mo. 333; State v. Hostetter, 222 S.W. (Mo.) 750; State v. Jones, 225 S.W. (Mo.) 898.] While the rule is that an instruction shall be complete, this does not mean that every evidentiary fact arising in a case, even if the same is pleaded, should be set forth therein. It is sufficient, therefore, if all of the instructions when read together present a correct statement of the law, for they but supplement each other. [Brown v. Globe Ptg. Co., 213 Mo. 611; State v. Norman, 101 Mo. 520.]
II. As to the concurring opinion of Chief Justice BLAIR concerning the propriety of the instruction that a court is not authorized in telling a jury that the *Page 164 recent unexplained possession of stolen property will warrant a presumption of guilt, but that such possession should be considered as any other evidentiary fact freed fromPresumption any presumption. Whether the presumption be one ofArising from law or fact, technically considered, is not soPossession: material as is the question whether the language ofExplanation. the instruction is not such as to cause the court to usurp the functions of the jury. If we seek light in the deductions of text-writers rather than in the actual rulings of the courts, we find in learned treatises on evidence and on presumptions that the line of demarcation between the different species of presumptions has not been observed with precision. The same presumptions are spoken of by judges sometimes as of law and at other times as of fact; sometimes as presumptions juries are advised to make, and at other times as being obligatory upon them to make. [2 Best, Ev. par. 323; Best, Presump, 47 L.L. par. 37.] In discussing the principle involved in the foregoing from Best on Evidence, the Supreme Court of Iowa says, in effect, that: "The recent unexplained possession of stolen property tends to establish the guilt of the person in whose possession it is found, and will authorize conviction, unless the inference of guilt is overcome by other facts tending to establish the innocence of the accused. This presumption may be overcome by testimony establishing facts inconsistent with guilt. Good character may be sufficient in some cases to overcome the presumption. The law holds that the presumption in question, unless overcome, will authorize conviction. It is a presumption recognized by the law, and may, therefore, be termed a presumption of law. The term presumption of fact implies that from certain facts the law will raise a presumption. Either of these terms, presumption of law or presumption of fact, may be used to express the same thought, for they are identical in meaning. See State v. Richart, 57 Iowa 245; State v. Hessians,50 Iowa 135; State v. Taylor, 25 Iowa 275. The instruction we think is correct." *Page 165 [State v. Kelly, 57 Iowa, l.c. 646.] Whatever may be the character of the presumption, the issue sharply made is as to its probative force. The effect of the Chief Justice's reasoning in his concurring opinion is that it is simply an evidentiary fact which derives no potency from the character of the property, the nature of the offense, or the fact that the possession may be recent and unexplained. If, on the other hand, the presumption arises out of a showing that the property recently stolen has been found in the possession of the accused, the law imposes upon him the burden of accounting for the possession of same in a manner consistent with innocence; otherwise the court may, as it has done in the case at bar, call the jury's attention to the force of the presumption and tell them that a verdict of guilty may be returned in the event such showing is not made. Despite the formidable array of authorities cited to the contrary, there are many well reasoned cases in support of the rule as above announced. These cases hold that where one is found in the exclusive unexplained possession of stolen property, unless he accounts for such possession in some of the many ways stated in the instruction under review, he will be presumed to be the thief. This, say some of the cases, is simply a deduction of common sense. And whether it be termed a legal presumption or one of fact, it must be submitted to the jury, as it was at bar, with a clearly defined statement of the facts and circumstances which the accused might interpose to destroy its probative force, when the State may, in turn, if it can, satisfy the jury that the showing of the accused is false. This rule of law has long been maintained here and elsewhere despite the fact that generally a court is forbidden to intimate to the jury an opinion as to the weight of the evidence. This rule, however, like that of falsusin uno, falsus in omnibus and the presumption of fraud as a matter of law from certain fiduciary relations, has been in practice reduced to narrow limits and is only applied when it is not necessary to resort to other evidence to support the conclusion. In other words, *Page 166 says, in effect, the Supreme Court of North Carolina (Lee v. Pearce, 68 N.C. 90): "The fact of guilt must be self-evident from the bare fact of the accused being found in the possession of the stolen property in order to authorize the court in declaring the presumption made by the law."
In State v. Garvin, 48 S.C. 258, the court, although designating the presumption as a legal one, held it to be a matter for the jury, and said, in effect, very clearly, the law does impose the duty upon a man, under such circumstances, to explain how he came into the possession of the property. If innocent, this is an easy matter. If he declines to do this or lies about it, the law places upon him a heavy responsibility.
Citing with approval Lee v. Pearce, the Supreme Court of North Carolina in State v. Graves, 72 N.C. 482, reiterated the rule that when goods are stolen and found in the possession of a person thereafter, unless explained, will authorize the presumption that he was the thief.
In Johnson v. State, 148 Ind. 524, it is held that when it is proved that property has been stolen and the same is recently thereafter found in the possession of another, the law imposes upon such person the burden of accounting for his possession and of showing that it was innocently acquired; failing so to do or giving a false account of his possession authorizes the presumption that he is the thief.
In Territory v. Casio, 1 Ariz. 485, it is held that "it is generally understood that the Prisoner's exclusive and unexplained possession of stolen property recently after the theft raises the presumption that the possessor is the thief, and lays the burden upon him to explain such possession in a manner consistent with his innocence." In support of this conclusion, the following texts and cases are cited: Roscoe, Cr. Ev., par. 18; 2 Russ. on Crimes, section 337; Knickerbocker v. People,43 N.Y. 177; People v. Walker, 38 Mich. 156; State v. Brady,27 Iowa 126; State v. Turner, 65 N.C. 592; Waters v. People,104 Ill. 544. *Page 167
The rule announced by the Supreme Court of Delaware in State v. Carr, 57 A. 370, is that where property recently stolen is found in the possession of a person, the rule of law is that such person is presumed to be the thief unless he accounts satisfactorily to the jury for his possession.
The rule that has been adhered to in Missouri for at least three-quarters of a century, which is in harmony with the cases above cited, is in our opinion correctly declared in the instruction under review. Under the rule as there applied, whether the presumption be one of law or fact, or conclusive or disputable, its probative force must depend upon the circumstances surrounding each particular case. Whatever these particular circumstances may be in any given case, proof that the property has been stolen is a prerequisite to the right to the presumption; further than this, as in the instruction here, the right of the jury to entertain the presumption is "cribbed, cabined and confined" by a number of limitations, either of which if deemed satisfactory by the jury will entirely dissipate the force of the presumption. Among these are an accounting for the possession in a manner consistent with innocence, which may include proof of the habits and manner of life of the accused, the conditions under which the property was acquired, the good character of the possessor, proof of an alibi, or that the weight of the evidence was against the otherwise authorized presumption. In the face of these limitations there is little room left for the contention that the usual presumption of innocence is removed or that the burden of proof is shifted to the defendant. Let it be granted, however, that the giving of the instruction may afford technical ground upon which to base these contentions, it furnishes nothing more. In its practical application it simply tells the jury that they may entertain a presumption that naturally arises in the normal mind upon its being shown that property recently stolen has been found in the exclusive possession of a defendant. If the jury were thus instructed without more some basis *Page 168 might be found for the contentions as to the removal of the presumption of innocence and a shifting of the burden of proof. With the limitations stated, however, there can exist no reasonable possibility for the defendant to be deprived of any defense to which he is entitled under the law.
Without lessening the force of the reasoning in favor of the integrity and perpetuity of the rule as to the probative force of the presumption in cases of the character here under review, it may be conceded that this rule is not in accord with the trend of decisions in other jurisdictions. While harmony in judicial rulings may, in the main, be regarded as a desideratum promotive of justice, the maxim loses its force when the reason for its existence ceases. That reason finds its only sure foundation in the fact that where the rulings on a given subject are uniform in their character the administration of the law will be rendered more effective and less opportunities will be afforded for unjust decisions. Where, however, a difference in ruling does not produce this effect, an attempt to harmonize them simply for the sake of a maxim can work no practical good. It is not, therefore, in a reactionary but a genuinely conservative spirit, prompted by a desire to further, so far as possible, the effective administration of the law, more specifically that of larceny, that this protest is entered against the proposed overruling of scores of Missouri cases on this subject.
III. I differ with my associate Judge GRAVES in regard to the right of the defendant to an instruction on circumstantial evidence. The rule that a defendant may only demand as a matter of right the giving of this instruction, in the absence of any other than circumstantial evidence, should, uponCircumstantial a review of the facts, prove a sufficient answerEvidence to the contention of my learned brother. There was proof of asportation, one of the essentials of the crime; this was direct in that the possession of the tarpaulin was as a physical fact found in the possession of the *Page 169 defendant. This finding, speaking as it does more emphatically than oral testimony, should not be construed as circumstantial. If, however, it be contended that the physical fact of possession does not obviate the necessity of an instruction on circumstantial evidence in that it is not direct testimony, it is shown that the defendant admitted the taking of the property. This constitutes direct evidence of the taking, although the defendant claims that he acquired the possession lawfully; that is, by finding the tarpaulin in a field.
The Supreme Court of Oregon, in a prosecution for larceny where the defendant admitted that he had the property in his possession but claimed that he had purchased it from a stranger, held, where the court instructed the jury on the question of purchase, presumption of innocence and reasonable doubt, it was not erroneous to refuse to instruct specifically upon the question of circumstantial evidence.
It is held that if the accused admits that he took the property, this relieves the court of the necessity of charging on the law applicable to circumstantial evidence, although the defendant may claim that he bought the property from a stranger previous to the taking. [Williams v. State, 44 S.W. (Tex. Cr.) 1103.] See also People v. Kaatz, 3 Parker, Cr. (N.Y.) 129. A like rule applies where the accused confesses the taking but insists that he did so without a fraudulent intent, under which state of facts it was held that the case was removed from the realm of circumstantial evidence so as to require a special charge thereon, the only issue left being that of intent. [Roberts v. State, 44 Tex. Crim. 267; Baxter v. State, 43 S.W. (Tex. Cr.) 87; Reed v. State, 46 S.W. (Tex. Cr.) 931.]
On a trial for theft of cattle where the accused testified that he took the animal by virtue of purchase from a stranger, this relieved the court of the necessity of charging on circumstantial evidence on the theory that there was direct testimony as to the taking. [State v. *Page 170 Holmes, 42 S.W. (Tex. Cr.) 979; Houston v. State, 47 S.W. (Tex. Cr.) 468.]
In summing up the rulings of the courts on the question of defendant's right to an instruction upon circumstantial evidence in larceny cases, it is said in 17 Ruling Case Law, page 80, that "the rule is universal that where an appellant testifies, and admits the possession of stolen property, but claims that his possession thereof was obtained in such manner as not to constitute theft, the case is not one of circumstantial evidence." [Worsham v. State, 56 Tex. Crim. 253, 120 S.W. 439, 18 Ann. Cas. 134; State v. Overson, 30 Utah, 22, 8 Ann. Cas. 794 and note.]
In view of all of which, I am of the opinion that the judgment of the trial court should be affirmed.