State v. Compton

McGHEE, Justice (dissenting in part).

The majority grudgingly admit, as I read their opinion, the error in the instruction containing the words “possession or control” was sufficiently pointed out to the trial judge to preserve the point for review here, but they save the case-from reversal by sitting in their cloistered chambers in .Santa Fe and concluding from the cold record .the error was harmless, in that it •could not have affected the verdict of the jury. Clearly such was not the appraisal •of the judge who tried the case or he would not have taken an old stock instruction like No. 7 was before he interlined “or control” .and changed it as he did, thus risking a .reversal.

As stated by this Court in State v. White, 1933, 37 N.M. 121 , 19 P.2d 192 , possession of the fruits of crime to raise a presumption of guilt of the possessor involves knowledge, dominion, and control, with power of disposal, or voice in the power of disposal, in the alleged possessor.

The word “control” does not necessarily include actual possession. Possession is defined in 72 C.J.S., Possession, p. 233, as ‘“the closest relation of fact which can exist between a corporeal thing and the person who possesses it * * *. In its full significance, ‘possession’ connotes domination or supremacy of authority. * * * Possession involves power of control and Intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term ‘possession.’ ”

In 18 C.J.S., Control, P. 28, et seq., the term “control” is considered, and the words listed therein as equivalents or synonyms are: Custody, government, management, superintendence and supervision.

The definition of the phrase “possession, custody, or control” was pertinent to the decision of People v. Britton, 1909, 134 App. Div. 275 , 118 N.Y.S. 989, 933 , where the defendants had been convicted of grand larceny. That phrase appeared in the section of the penal code under which conviction was sought. The court ruled that the conviction should stand although the defendants had not been in actual possession of the stolen funds of a corporation. The court said:

“* * * If physical possession was required, the words ‘custody, or control’ are meaningless, and plainly those words are not used synonymously with ‘possession.’ According to the lexicographers, physical possession is not essential to custody or control. One may have the custody, the care, the guardianship of, and may exercise control over, what is not in his physical possession. A bank president, by virtue of his office, may have the custody and control of the bank’s money, although none of it passes through his hands. * * * ”

Similarly, in Randazzo v. United States, 8 Cir., 1924, 300 F. 794, 797 , defendants appealed from conviction of robbery of mail bags from a person in the lawful charge, control and custody of the United States mail. The court in defining the terms “charge, control, or custody” stated:

“ * * * As already indicated, the words ‘lawful charge, control or custody,’ as used in the statute, have no technical meaning; they are used in their plain and ordinary significance. The word ‘charge,’ when used, as here, as a noun, has as one of its synonyms ‘custody.’ Both words connote, not only control, but include as well, though they do not require, the element of physical, or manual possession. The word ‘control,’ as used in this statute, is a slightly broader word, in that it lacks the implication of physical possession. * * if»

In my view the terms “possession” and ■“control” may not be used synonymously or in an alternate sense with respect to describing the relationship between an accused and the subject of larceny requisite to raise a presumption of guilt. I believe the jury would have been justified in inferring that the defendant would be guilty of the crime charged upon a showing the defendant had the mere control of, or right to control, the pastures in which the heifer and bull calves grazed. In the range country of New Mexico I believe it is commonly accepted where one has the right to eject livestock belonging to others, such person has control of the range and animals grazing thereon. The jury may well have believed the mere fact the defendant was the foreman of the ranch and in sole charge thereof gave him the right to turn the calves out of the Todhunter pastures, and that this one fact was sufficient basis on which to find he was in “control” of the calves, and therefore a verdict of guilty was really directed by instructions No. 7.

The evidence revolves around possession, and it is barely sufficient to sustain the verdict under correct instructions. No conviction for larceny based on possession has heretofore been sustained by this court on the quantum- of proof present in this case. The statement that either possession or control was sufficient in the hostile atmosphere in which the defendant was tried may well have had a devastating effect on the defendant’s case, as there was no question but that the calves were in a pasture of which he had control in his position as foreman of the ranch.

The error as to control is, I believe, highly prejudicial, because the gist of the state’s case under these and similar facts is possession — not control, or the right to control. As above stated, I believe instruction No. 7 amounted to a directed verdict of guilty. Accordingly the defendant should he granted a new trial.

I concur in the remainder of the majority (Opinion.

■COMPTON, J., concurs.