Opinion
No. 5315.
October 10, 1929.
APPEAL from the District Court of the Ninth Judicial District, for Clark County. Hon. C.J. Taylor, Judge.
Defendant was convicted of the crime of petit larceny. Affirmed.
O.A. Johannesen, for Appellant.
A conviction will not be warranted unless all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis, except that of guilt, or, in other words, if they are inexplicable on the theory of innocence. ( State v. McLennan, 40 Idaho 286, 231 P. 718; 16 C. J., sec. 1568, p. 763; State v. Dawn, 42 Idaho 210, 245 P. 74.)
The following instruction was approved by this court: "You are instructed that before you can find a defendant guilty of the crime charged, based solely on circumstantial evidence, you must find beyond a reasonable doubt that the circumstances are consistent with the guilt of the defendant and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt." ( State v. Healey, 45 Idaho 73, 260 P. 694.)
W.D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.
The rule requiring the jury to be convinced beyond a reasonable doubt of the guilt of the accused, does not require the evidence to be free from conflict. (16 C. J. 760.)
Instructions of the court must be read together, as no one instruction can state all the law. ( State v. Petrogalli, 34 Idaho 232, 200 P. 119; State v. Sayko, 37 Idaho 430, 216 Pac. 1036.)
Jack McAllister was convicted of the crime of petit larceny in the probate court of Clark county. Upon appeal to the district court he was tried de novo and again convicted. From the ensuing judgment, he has appealed to this court, assigning numerous errors and insufficiencies of the evidence.
Dismissing at once the objections attacking the procedure in the probate court, in view of the trial de novo, we first take up appellant's contention that the court erred in eliminating from Instruction No. 7 a provision that the circumstances must be "inconsistent with his innocence." The instruction complained of concluded with the express admonition that the jury "must exclude to a moral certainty every other reasonable hypothesis except the guilt of the person charged." And the instruction immediately preceding advised that "the evidence must to your minds exclude every reasonable hypothesis other than that of the guilt of the defendant . . . . if after an entire consideration and comparison of all the testimony in the case, you can reasonably explain the facts given in evidence on any reasonable ground other than the guilt of the defendant, you should acquit him."
Such language effectually disposes of appellant's contention. That venue was properly laid, appears abundantly from the testimony of the witness, James H. Eddie. Appellant really poises his case upon the following contention stated in his brief:
"The evidence is far from conclusive in the matter of the identification of the hides, but on the contrary is conflicting as to what hides were actually brought into court as the State's exhibits."
Here is the whole thing in a nutshell, conflicting evidence. McAllister positively swore that the hides taken from him by the sheriff were not the hides produced in evidence. The sheriff swore quite as positively that they were. In this he was corroborated by other witnesses.
Objection is made that the court erred in entering a money judgment for fine and costs against appellant's sureties. The sureties are not here; and, furthermore, the procedure was in direct obedience to C. S., sec. 9270.
Judgment affirmed.
Budge, C.J., and Givens, Wm. E. Lee and Varian, JJ., concur.