It seems but common sense to say that when one is found in possession of recently stolen property and gives an unsatisfactory explanation as to how he came into possession there is much likelihood that he either stole it or knowingly received stolen property; and if he is guilty of one or the other, the law lays it on him to distinguish. Section 103-36-1, R.S. Utah 1933, was meant to make the law in this regard square with common sense. If the defendant was found in possession of stolen property and gave an unsatisfactory explanation, it would be incumbent on him in the court room to repair the damage such explanation had done to the presumption of innocence with which the law clothed him or run the risk of being found guilty by the jury if the case, after all the evidence was in, went to the jury. Conduct which reasonably constitutes indicia of guilt may be constitutionally made to constitute a prima facie case. That it may compel the defendant to produce evidence in order to counter its effect does not contravene due process. There is just as much danger that society may render itself helpless to convict criminals by throwing around a defendant so much immunity in its anxiety to protect the individual against the might of government as there is danger that by relaxing the protection afforded the individual by the due process clause we may sacrifice individual liberties to the interests of society. Always in this field of due process the matter of finding the proper point of balance cannot be escaped.
Assuming the principle laid down in State v. Gurr, supra, to be correct, I cannot agree that "the evidence is such *Page 30 that all reasonable minds should arrive at the conclusion that the explanation [of Bruno] is reasonable and satisfactory." The court's opinion holds, in effect, that the explanation of accused's possession of the recently stolen wool was so strong and convincing that no reasonable mind could have found it unsatisfactory. Assuming the Gurr Case to be good law, this is the quantum of proof accused must have given in order to be entitled to a directed verdict of acquittal. Although I cannot be the judge of whether my own mind is a reasonable one, I do not believe the explanation offered in behalf of the accused was such that no reasonable man could find that it was other than satisfactory.
That the explanation was not of itself satisfactory is plainly evidenced by thefact that the opinion of the court attempts to explain wherein and why the explanation was satisfactory. If the explanation needs explaining, it cannot be so convincing that no reasonable mind could refuse to do the explaining and conclude that the explanation of possession did not satisfactorily account for it.
The following facts appear from the testimony advanced by Bruno as an explanation: (a) Bruno twice denied knowing anything about wool in the Norton warehouse in Price and later admitted that it was his; (b) Bruno twice denied having been in Price the morning of April 15th, but later admitted that he had been there to take a load of wool to the Norton warehouse (or the portion of it which he used); (c) It is claimed that defendant paid for the wool by check made out on the 15th, but that check is dated April 11th; (d) Bruno, an experienced wool buyer, paid $30 for wool at 5:30 A.M., without looking at it or weighing it.
The court's opinion attempts to explain away (a) and (c). But is it our province to advance what might be a reason for Bruno's inconsistencies or denials? Are we not importing in our decision our idea of what might explain a discrepancy when such is for the jury? And if we may, is the reason which the main opinion advances as an explanation *Page 31 for Bruno's denial really borne out by the evidence? Is it a valid explanation even granted it is within our province to tender this explanation? The opinion explains that Bruno properly denied knowledge of wool in Norton's warehouse because Bruno had put the wool in question in his portion of the warehouse. The possibility of lending this protection to the accused is removed by the more specific testimony of Hayward on cross-examination (Tr. 130) where it appears that Bruno at first denied knowing anything about wool in his portion of Norton's warehouse:
"Q. Now, later on you had another conversation with him and you asked him or told him that you had been down and examined some wool in his portion of the warehouse, that is right, isn't it? A. That is correct.
"Q. And then you asked him where he got it? A. Yes.
"Q. He told you he bought it? A. He did not. After the first two or three questionings he told us he knew nothing about thewool." (Italics added.)
Mr. Justice MOFFAT explains away the dating of the check as of April 11th by saying it was a mistake. The jury might well have so found; but can this court say that no reasonable mind could believe that it was not a mistake but was intentionally done to provide an "out" in case trouble arose over the stolen wool?
Justice MOFFAT does not attempt to explain Bruno's denial that he was in Price on April 15th. This failure alone might convince a reasonable man beyond a reasonable doubt of the accused's culpatory possession.
It is strange for a wool buyer to buy fourteen sacks of wool without looking at it, unless he knew he was getting such a good price that it was a bargain regardless of quality. Bruno paid almost 30 cents a pound, according to his story and the notation in his check book that he bought 110 pounds of wool. A wool expert testified that wool of this quality and in this condition should command from 30 to 34 cents a pound. If Bruno believed he was buying 110 *Page 32 pounds of wool at 5:30 A.M. from a stranger for $30 he acted carelessly and a reasonable mind might well regard such an explanation as unsatisfactory. But the record produces an important contrary fact which might have interested the jury, if not this court. The wool in the fourteen gunny sacks actually weighed 313 pounds, according to J.B. Skewes, the sheriff. This would explain why Bruno would buy the wool without examining or weighing it, but does not explain why "110 pounds" was written on the check stub. Perhaps that check was for other wool, or perhaps the check was intentionally misdated, or perhaps other wool was added to that claimed to have been purchased. But it is not for this court to speculate. If reasonable minds could differ as to whether this was a satisfactory explanation, the case, underState v. Gurr, supra, was rightly submitted to the jury on that question.
The explanation of the accused might have been found unsatisfactory for any of the four reasons mentioned, viz., (a) denying twice any knowledge of wool in the Norton warehouse and later admitting it was his; (b) twice denying having been in Price the morning of April 15th and later admitting that he had gone there to take a load of wool to the Norton warehouse where the stolen wool was found; (c) claiming that the check dated April 11th paid for wool bought on the 15th when the check stub noted "110 pounds of wool" and the amount found in the warehouse, apparently the same wool, weighed 313 pounds; and (d) buying wool for $30 at 5:30 A.M., without looking at it or weighing it.
The explanation to me seems unsatisfactory. Believing that I have a reasonable mind, I am forced to the conclusion that another reasonable mind might find it unsatisfactory and therefore the question was properly submitted to the jury. *Page 33