179 Wis. 170 | Wis. | 1922
The automobile was stolen in Milwaukee, and later on the same day Smith and the defendant were arrested in Racine. Smith was driving the automobile and the defendant was with him in the driver’s seat. Upon being arrested the defendant refused to answer questions put to him by the officer, except that he stated, as testified to by the officer upon the trial, that he first met Smith in a pool hall in Milwaukee, and upon Smith’s invitation rode with him to Chicago-, where they were going when arrested. He also told the officer that he came to Milwaukee the same
We think the trial court erred in reaching the conclusion from this testimony that the defendant was-proven guilty beyond a reasonable doubt. The statute, sec. 4071, provides that his omission to testify shall create no presumption against him, and he had a right to rely for his protection upon the explanation of Smith as to who stole the car and as to who was in possession thereof. We think the fact that Smith’s failure to tell the truth, if he did, so far as to how the motor was started and as to the possession of the Illinois license plates, did not justify the'trial court in reach
“The general rule that the possession of stolen property is evidence of guilt is limited by the rule that to warrant an inference of guilt it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused. It would be pushing the rule too far to require of one accused of a crime an explanation of his possession of the stolen property when such possession could also, with equal right, be attributed to another.”
There is nothing in the evidence in this case to show that the defendant was more than a mere passenger in a stolen car; and the explanation as to how he and Smith became acquainted, the fact that Smith stole the car alone, and that he did not acquaint the defendant with the larceny of the car, is not so strange and unreasonable as to lead one to a conclusion beyond a reasonable doubt that Tie contrary was true.
As before stated, we do not decide whether or not the defendant was found in the possession of stolen goods within the meaning of the law, .but, assuming-that he was,
By the Court. — Judgment reversed, and action remanded for a new trial. The superintendent of the Milwaukee house of correction will surrender the defendant to the custody of the sheriff of Milwaukee county, who will hold him in custody until he shall be discharged therefrom by due process of law.