I dissent. I think there was sufficient in corroboration of the accomplice, the Indian, Greenstick, to take the case to the jury. The evidence is fully and fairly stated in the prevailing opinion, with the exception that in referring to the conversation on August 4, 1929, at Mr. Timothy's place near the "Gyp" plant, it is stated that whatever was done or said on that occasion was in the presence and hearing of Mr. Timothy and Mr. Davis, both of whom were witnesses. These witnesses so testified, but the Indian testified that the defendant and he withdrew from the others and had some conversation in low voice outside the hearing of the others.
The defendant is charged with the larceny of two heifers, and, while charged as a principal, it is on the theory that, although not present and participating personally in the taking of the heifers, he had previously advised and encouraged Greenstick to commit the theft. This, if proven, makes defendant a principal in the crime. Comp. Laws *Page 210 210 Utah 1917, § 7919. Greenstick testified that at the request and insistence of the defendant he took the cattle from the pasture of the owner and drove them to the corral of Johnny White, another Indian, and, after telling the defendant what he had done, the defendant met him at Johnny White's corral, and there the two heifers, branded with the owner's brand, were loaded by Greenstick and the defendant on to defendant's truck, and were taken by the defendant to his corral in Roosevelt, where they were shortly thereafter seen and claimed by the owner. The defendant explained his possession by saying to the owner that he had bought the cattle from Greenstick, and, according to the testimony of the owner, that he had loaded them at Greenstick's place near Jimmy Nephi's and volunteered the information that there was another cow, the mother of one of the heifers, at the same place. Greenstick's place is about five miles distant from the Johnny White place.
The statement of defendant, if Killian be believed, and that is a question for the jury, that he had loaded the cattle at "Edgar's place near Jimmy Nephi's," instead of saying that he had loaded them at Johnny White's place, where he did load them, was false. The inference to be drawn from it is that he falsified in order to make his story sound more probable.
The complicity of the defendant consisted in advising, encouraging, and inducing Greenstick to steal the animals and to deliver them to him at the corral of Johnny White. Greenstick, admittedly an accomplice, is the only person who testified to the conversations wherein defendant so advised him to steal the cattle. That the cattle were loaded at Johnny White's corral by Greenstick and defendant, and were found later in possession of defendant at his corral, together with his explanation of his possession and that he made small payments to Greenstick, depends upon testimony of other witnesses. The question is whether by this other testimony the accomplice is sufficiently corroborated under our statute, Comp. Laws Utah 1917, § 8992, which requires, before conviction can be had on the testimony of *Page 211 an accomplice, that it be "corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense." If it is necessary that Greenstick be corroborated directly with respect to the particular conversations wherein the defendant is claimed to have advised and encouraged him to steal the cattle, then there is no sufficient corroboration, but, if defendant's possession of the heifers, his explanation which was partly true and partly false, and his loading of the cattle at Johnny White's place, aided by Greenstick, and payment of money to the accomplice both before and after he saw the cattle, tend to connect him with the commission of the offense, then the accomplice is sufficiently corroborated to make a case for the jury.
The statute respecting corroboration of accomplices is reasonably clear itself, and has been construed and applied by this court and by other courts. An accomplice need not be corroborated as to every material fact to which he testifies; such a requirement would in effect deny to his testimony any value at all. If he is corroborated as to some material facts, the jury is entitled to infer that he has been truthful as to others. 16 C.J. 705; People v. Viets, 79 Cal. App. 576,250 P. 588; State v. Hall, 97 Iowa 400, 66 N.W. 725.
In State v. Lay, 38 Utah 143, 110 P. 986, 987, this court said:
"Under this statute, the jury has no legal right to convict a defendant upon the uncorroborated testimony of an accomplice, even though they believe the testimony of the accomplice to be true as to every material fact, and are convinced by it of the guilt of the defendant beyond a reasonable doubt. People v.Clough, 73 Cal. 348, 15 P. 5; State v. Carr, 28 Or. 389,42 P. 215; Underhill, Crim. Ev. p. 93. It is not essential, however, that the corroborative evidence shall be sufficient of itself to support a verdict of guilty; nor is it essential that the testimony of the accomplice be corroborated on every material point. It is sufficient if the testimony of the accomplice is corroborated as to some material fact, and that the corroborative evidence in and of itself, and `without the aid of the testimony of the accomplice, *Page 212 tends to connect the defendant with the commission of the offense.'"
The evidence here is more than merely the finding of recently stolen cattle in defendant's possession. Yet possession alone of property recently stolen is a material fact which may be proven (36 C.J. 895), as it tends to connect a defendant with the transaction of the commission of the crime, and is sufficient to corroborate an accomplice. The rule is stated in 16 C.J. 708 as follows:
"The possession by defendant of the fruits of the crime, such as property stolen at the time of the burglary, robbery, larceny, or murder, of itself tends to connect him with the commission of the crime, and may be sufficient corroboration of the testimony of an accomplice to warrant a conviction, and this has been held to be true in a homicide case, although the accomplice testified only to the fact of the killing and not as to the taking of the property of the victim.
"In a prosecution for receiving stolen goods the actual possession of the goods has been held to corroborate the testimony of an accomplice as to felonious intent and guilty knowledge in receiving the goods, and a fortiori possession connected with concealment of the goods is sufficient corroboration."
In State v. Butterfield, 70 Utah 529, 261 P. 804, 805, the decision turned on whether the defendant was in personal possession of the stolen property found in a house occupied jointly by him and the accomplice. The holding was that the evidence did not show a conscious personal possession, but the ocurt said:
"If the corroboration amounted to proof that the defendant at the time referred to had possession of the parts of the stolen property, it would have satisfied the requirements of the statute, as recent and unexplained possession of stolen goods is substantial evidence of guilt."
In the Butterfield Case no attempt was made by defendant to explain possession of the property, while here the defendant did make an explanation, which, tested by the independent testimony, was partly false, and, if the accomplice is to be believed, was wholly false. Possession of stolen property tends to connect the defendant with the crime, *Page 213 and it is for the jury to say whether the explanation is satisfactory or not. People v. Haughey, 79 Cal. App. 541,250 P. 406.
A case very much in point is State v. Seitz, 194 Iowa 1057,187 N.W. 695, 699. Seitz, a junk dealer, was charged jointly with others with the larceny of a quantity of brass which the other defendants had stolen from certain railroad shops. The accomplices had sold Seitz some stolen brass and told him they could get more from the same place. His complicity in the crime rested on the evidence of the accomplices that he told them "to get it down there to him," and he would pay them 10 cents a pound for it. The accomplices, without Seitz, went to the railroad yards and took and carried away about 1,100 pounds of brass, some of which they delivered to Seitz at his place of business, and some was shipped to him by express. Iowa has a statute on corroboration of accomplices substantially the same as our section 8992. The court said:
"We have held, however, that the corroboration need not be as to every material fact testified to by an accomplice. The requirements of the statute are met if the accomplice is corroborated in some material fact tending to connect the defendant on trial with the commission of the offense. * * *
"Logically from an examination of the record to discover whether it affords sufficient corroboration of the testimony of H.H. Ryland, Charles Seward and Hollis Printy we meet the proven and admitted fact that the defendant Seitz was in possession of the recently stolen property. The presumption that arises from the possession of recently stolen property is one of fact. The jury was not instructed on the presumption arising from possession of recently stolen property, unexplained, yet the circumstances under which the brass was bought by Seitz and sold to him by the accomplices were of probative value to be considered by the jury as tending to connect the defendant with the commission of the crime alleged. State v. King, 122 Iowa 1,96 N.W. 712; State v. Stutches, 163 Iowa 4, 144 N.W. 597. * * *
"We are not cited to any case, and we know of no authority, where a court assumed to say that the explanation given by the accused was sufficient, as a matter of law. We think it is universally held that the effect of explanatory testimony and the extent to which it rebuts the inference of guilt arising from recent possession of stolen property is for the jury. It may be conceded that when the accused gives a *Page 214 reasonable explanation of his possession of stolen property, it becomes incumbent upon the state to show the falsity of the account. But it remains for the jury to say, taking into consideration all of the testimony bearing thereon, whether the explanation offered is reasonable and credible, and if the explanation is by the jury rejected as intrinsically unworthy of belief, the absence of any counter showing by the state does not necessarily require a verdict of acquittal. * * *
"It is insisted in argument by appellant's counsel that, because some of the circumstances shown are as consistent with innocence as with guilt, therefore they cannot be given force as supplying the required statutory corroboration. We do not understand this to be the test. State v. Bosch, 172 Iowa 93,153 N.W. 73."
The view that the evidence is sufficient to corroborate the accomplice is supported also by the following cases: People v.Hovis, 30 Cal. App. 703, 159 P. 222; Williams v. State,104 Tex. Crim. 55, 282 S.W. 228; Taylor v. State, 35 Ariz. 317,277 P. 978; People v. Wagner, 36 Cal. App. 41, 171 P. 699;People v. Grundell, 75 Cal. App. 301, 17 P. 214; Snoddy v.State, 75 Ala. 23; Estes v. State, 180 Ark. 656,22 S.W.2d 172; Jones v. State, 105 Tex.Crim. R., 289 S.W. 684,685; State v. Ozias, 136 Iowa 175, 113 N.W. 761; Hunter v.State, 23 Okla. Cr. R. 125, 212 P. 1014; People v.Armstrong, 114 Cal. 570, 46 P. 611; Modica v. State,94 Tex. Crim. 403, 251 S.W. 1049; Lopez v. State, 92 Tex. Crim. 97,242 S.W. 212; Frazier v. Com., 190 Ky. 196,226 S.W. 1069; State v. Thompson, 87 Iowa 670 54 N.W. 1077; State v. Russell, 90 Iowa 493, 58 N.W. 890.
In addition to possession by defendant of recently stolen property, the accomplice is directly corroborated as to his testimony that he and defendant loaded the cattle at Johnny White's place. The cattle bore the brands of the owner, which could be plainly seen. This should have put defendant on inquiry if honestly buying the heifers. As it was, there is testimony that he had previously bought all of Greenstick's cattle, and had at times purchased from Killian, so it may be inferred that he was familiar with his brands. It is undisputed that defendant paid Greenstick $4 on one occasion and $4 and credit for an auto tire on *Page 215 another, both before the day he loaded the cattle. This testimony to my mind is more in accord with the theory that he was paying for services, as testified by Greenstick, than that he was paying in advance installments on the purchase price of cattle he had never seen but might buy in the future from the Indian, as claimed by defendant. It is said that the circumstance of Johnny White seeing defendant and Greenstick load the two heifers in the truck and defendant drive away with them has no tendency to connect defendant with the crime. I think it does have a direct tendency to connect the defendant with the crime. Modica v.State, supra. It is for the jury to determine whether the explanation made by defendant is satisfactory or sufficient. Under our statute, Comp. Laws Utah 1917, § 8285, the jury might convict on this testimony if the explanation of defendant were unsatisfactory. Suppose we apply the test quoted in the prevailing opinion from Welden v. State, 10 Tex. App. 400[10 Tex. Crim. 400], and eliminate from the case the evidence of the accomplice with a view to ascertain if there is any inculpatory evidence — evidence tending to connect the defendant with the crime. If there is, the accomplice is corroborated. If we do this, the case stands thus: There is a larceny of the two heifers belonging to Killian and marked with his brands. Shortly thereafter defendant and Greenstick are seen loading these heifers into defendant's truck at Johnny White's corral. The cattle are shortly thereafter found in possession of defendant in his corral at Roosevelt. In explaining his possession, he says he bought them from an Indian and loaded the cattle at Greenstick's place. This, I think, would make a prima facie case under the statute. The defendant is connected with the offense; hence the accomplice is corroborated.
People v. Morton, 139 Cal. 719, 73 P. 609, and State v.Cowell, 149 Iowa 460, 128 P. 836, are cited in the prevailing opinion, but neither are in point because there was no evidence of possession in the accused of any of the property taken in the commission of the charged offense, nor was *Page 216 there any evidence whatever, other than the testimony of the accomplice, to connect the accused with the crime.
It is said that State v. Potello, 40 Utah 56, 119 P. 1023 is conclusive against the state on the argument I have just made. That would be true if here, as there, the proof was that the asportation of the heifers had been accomplished without the defendant having advised and encouraged the theft. The testimony of the accomplice proves that the asportation was by him, but it also proves, if believed, that it was done at the instance of the defendant. In State v. Potello the evidence merely showed that others than the defendant had committed the theft, and the court rightly held that the presumption of guilt arising from proof of recent possession of the stolen property was, by that evidence, overcome, and hence inoperative to support conviction. There was no evidence whatever in that case that the theft was committed by others at the solicitation of the accused.
Error is assigned in the giving of instruction No. 7, which is as follows:
"You are instructed, Gentlemen of the jury that if you shall find from the evidence that the witness Greenstick represented to the defendant that the heifers described in the information belonged to him Greenstick, and offered to sell the said heifers to the defendant, and the defendant agreed to purchase said heifers and receive the same in good faith, believing them to be the property of Greenstick, then I charge you that the verdict must be `not guilty.'"
The only ground of objection stated in the exception to the instruction was "for the reason that the same tends to cast a burden upon the defendant of proving his innocence of the crime charged." This also is the only ground for objection stated in the assignment of errors.
Instruction No. 7 is substantially in form and substance defendant's requested instruction No. 4, but with some additional language respecting the representations as to the ownership of the cattle. Defendant's request No. 4 is as follows: *Page 217
"You are instructed that if you shall believe that the defendant Laris agreed to purchase the cattle mentioned in the information of the witness Greenstick and that such agreement was made in good faith on the part of such defendant, that you must render a verdict of not guilty."
No exception was taken or assignment of error made with respect to the matter added by the court, but, notwithstanding that, objections directed to this new matter are made and argued in the brief of appellant and noticed in the prevailing opinion. Even though the instruction be open to the objection stated in the exception, which I doubt, the defendant is in no position to take advantage of it, as the same vice inheres in his requested instruction No. 4, and the error, if any, was induced by his own request. 14 R.C.L. 815.
In my opinion, the judgment should be affirmed.