For the reasons stated in my opinion on the former hearing reported in 97 Utah 17, 85 P.2d 795, in connection with the following reasons, I dissent from the prevailing opinion written by Mr. Justice McDONOUGH.
The evidence does not even remotely or by any possible inference connect the defendant with the asportation of the three sacks of wool. The case against defendant hangs solely upon the possession by the defendant of a portion of the property recently stolen.
As indicated in the prevailing opinion, there were three sacks of wool removed from the car during the night of the alleged asportation.
The only evidence relating to how the defendant came into possession of the wool is that related by the sheriff, as to Bruno's explanation. That explanation is the wool was bought from R.W. Smith, at his cabin on the morning of the 15th of April. That he bought 14 or 15 gunny sacks of wool and paid therefor. These 14 or 15 gunny sacks of wool, when weighed, were found to contain more wool than the sack of which it was claimed to be a part. Bruno's wife corroborated the sheriff's statement as to the purchase of the wool. The state attempted in no way to show that the defendant did not acquire possession as he said he did. The explanation, assuming it to be true as we must, stands uncontradicted. That Bruno made inconsistent, or even false *Page 41 statements as to having wool at a warehouse had, if any, only a very remote bearing as to how he got the wool.
I fear the majority opinion has wandered into by and forbidden circumstantial fields and has given weight to collateral circumstances having no bearing upon the explanation of how the defendant acquired possession. The place of possession is one thing. The matter of whether stored or not is another. The time, how or from whom possession was acquired is still another.
In the instant case, the crux of the matter of guilt or innocence of the defendant turns upon whether the explanation he gave is an unreasonable one and the state had the burden of proving by the same degree of certainty that the explanation was unreasonable as it did of all the other elements necessary to attach guilt upon the defendant.
In addition to the question upon the facts, the opinion goes too far in holding, at least impliedly if not expressly, that defendant must assume the burden of showing his explanation to be reasonable and relieving the state of the burden of showing whatever explanation offered was unreasonable. The conviction and judgment should be set aside and a new trial granted.