Opinion
No. 9627.
December 23, 1965.
APPEAL FROM DISTRICT COURT, THIRD JUDICIAL DISTRICT, ADA COUNTY, MERLIN S. YOUNG, J.
Richards, Haga Eberle, Boise, for appellant.
Allan G. Shepard, Atty. Gen., and Weldon S. Wood, Asst. Atty. Gen., Boise, for respondent.
Possession of goods recently stolen in a burglary does not create a presumption of guilt, and is not, of itself, sufficient evidence upon which to base a conviction of guilt. State v. Pate, 43 Idaho 648, 253 P. 623; State v. Wilson, 62 Idaho 282, 111 P.2d 868; 9 Cal.Jur.2nd, p. 496; People v. Nichols (1918) 39 Cal.App. 29, 177 P. 861.
Where guilt in a burglary case depends on possession of stolen property, the identity of the goods with those stolen must be established beyond a reasonable doubt. State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 902; State v. Blank, 33 Idaho 730, 197 P. 821.
Error is never presumed on appeal and the appellant has the burden of showing affirmatively that there was error and the appellate court need not search the record for possible error. Swanson v. State, 83 Idaho 126, 358 P.2d 387; State v. Bedwell, 77 Idaho 57, 286 P.2d 641; State v. Cofer, 73 Idaho 181, 249 P.2d 197; State v. Golden, 67 Idaho 497, 186 P.2d 485; State v. Snoderly, 61 Idaho 314, 101 P.2d 9.
An appeal from a final judgment of conviction on the ground that the verdict is contrary to the evidence may be considered only in cases where a specification of the particulars in which the evidence is insufficient is made in appellant's brief filed with the Supreme Court. Idaho Code, Section 19-2803.
Where insufficiency of evidence to support the verdict is claimed, the appellant must specify the particulars in which the evidence is insufficient. In the absence of such specification, the alleged error will not be considered. State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Sims, 35 Idaho 505, 206 P. 1045; State v. Poulos, 36 Idaho 453, 212 P. 120; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Johnson, 39 Idaho 440, 227 P. 1052; State v. Mundell, 66 Idaho 339, 158 P.2d 799; State v. Shaw, 69 Idaho 365, 207 P.2d 540; State v. Pollock, 80 Idaho 256, 327 P.2d 781.
Evidence of broken windows, open doors and items missing from within the building is sufficient evidence to show the unlawful entry portion of the corpus delicti of burglary. People v. Selby, 144 Cal.App.2d 483, 301 P.2d 290.
In a burglary prosecution it is sufficient to show unlawful intent when the entry was made, by circumstancial evidence. One's intent may be proved by his acts and conduct, and such is the usual mode of proving intent. State v. Johnson, 77 Idaho 1, 8, 287 P.2d 425, 51 A.L.R.2d 1386; Exparte Seyfried, 74 Idaho 467, 264 P.2d 685; State v. Kleier, 69 Idaho 278, 206 P.2d 513.
Where the breaking and entry is proved, if the property is sufficiently identified as stated at the time of the breaking, the state may show the unexplained possession of recently stolen property as tending to connect the defendant with the burglary. Such proof does not raise a presumption, but is merely evidence from which the jury may convict. State v. Pate, 43 Idaho 648, 653, 253 P. 623; State v. Darrah, 60 Idaho 479, 484, 92 P.2d 143.
When the corpus delicti of burglary has been shown, the fact of possession is evidence of guilt upon which a conviction may be properly returned. 13 Am.Jur.2d, Burglary, § 54 p. 355; State v. Sullivan, 34 Idaho 68, 75, 199 P. 647, 17 A.L.R. 902.
This is an appeal from a judgment rendered against Louis A. Lott upon a jury verdict of guilty of burglary in the first degree.
Lott asserts that the evidence does not support the verdict or the judgment entered thereon. The uncontradicted evidence shows that in the early evening of February 5, 1963, a 1958 Ford four-door sedan without license plates was stolen from the premises of a Boise automobile sales agency. In addition, a license plate bearing the numbers 1A 8461 was stolen from another car which was located within the building occupied by the agency. A police officer testified that at approximately 9:30 on the evening of February 5, 1963, he saw the defendant driving a car of the above description, bearing a license plate marked 1A 8461, leaving the Boise area and proceeding easterly toward Mountain Home. The car was found the next day parked on the main street in Mountain Home.
Appellant contends that mere possession of recently stolen goods is not of itself sufficient evidence upon which to convict the possessor of those goods of the crime of burglary. The rule in this state is to the contrary. In our most recent opinion on this issue, State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965), we held that the defendant's possession of recently stolen property was sufficient evidence upon which the jury could find him guilty of the crime of burglary.
Appellant also contends that there is not sufficient evidence in the record to establish beyond reasonable doubt that the vehicle in defendant's possession was the same vehicle stolen from the premises of the automobile agency. It is true that the identification of the stolen automobile was less than conclusive. However, the evidence is conclusive that the stolen license plate was the same as the one seen by the policeman on the car the defendant was driving a short time after the burglary. An owner of the automobile agency testified that the license plate was stolen from a car which was in the shop for repairs and identified the number of the plate. The policeman stated that when he saw the defendant on the evening of the burglary, he wrote down the license number of the car the defendant was driving. These numbers coincided with each other. This evidence sufficiently identifies the property in the possession of the defendant at that which was stolen from the agency.
The judgment below is affirmed.
McFADDEN, TAYLOR, SMITH and KNUDSON, JJ., concur.