Commonwealth v. McGorty

| Mass. | Nov 15, 1873

Wells, J.

The proof sufficiently supported the allegation of ownership of the dwelling-house, and of the personal property stolen. There was no variance. Gen. Sts. c. 172, § 12.

Possession of the box of cigars, under the circumstances testified to, gave rise to the presumption that Carney was the person who had taken it from the house of Mrs. Finnegan. The inference, then, that he was connected with the burglary and with the larceny of the other articles, taken at or about the same time, was just as natural, obvious, and legitimate as if the box of cigars had been enumerated with the other property in the indictment. Commonwealth v. Riggs, 14 Gray, 376.

The instructions that possession of stolen property immediately after the theft, if an unsatisfactory account of it is given “affords presumptive evidence of guilt,” was right; and the whole matter of the degree of force the presumption ought to bear in the particular case was submitted to the jury, as a question of fact, in a manner which leaves no ground for ex ception.

If the defendants gave a reasonable account of their possession, the general burden of proof upon the government might require some evidence to show that account to have been false. But the jury might find the explanation of the defendants so improbable, unsatisfactory or unreasonable, upon its face, as to require no affirmative proof of its falsity. Any evidence which tended to show that the defendants were guilty of the theft, tended also to show that they were guilty of the burglary by means of which the theft was effected.

The recalling of a government witness, during the progress of the defence, was a matter within the discretion of the court in directing the course of the trial. Commonwealth v. Ricketson, 5 Met. 412, 429. Commonwealth v. Moulton, 4 Gray, 39. Commonwealth v. Arrance, 5 Allen, 517.

Exceptions overruled.