The indictment charged grand larceny and buying,' receiving etc., stolen property.
. Appellant was convicted -of the offense of buying, receiving, concealing or aiding in concealing stolen property, etc.
In his oral charge the court instructed the jury;
“If you are convinced beyond all reasonable doubt by the evidence that the property was stolen and further that the defendant was in possession of the property then the defendant has the burden of going forward with the evidence and explaining his possession of the property. This pertains to the charge of receiving and concealing stolen property and the reasonableness of his explanation is for you to determine in passing on the question of his guilt or innocence. If you determine that his explanation is reasonable, then of course the defendant should be acquitted but if you determine that his explanation is not reasonable, then you would be authorized to infer that the defendant knew that the property, was stolen and that he did not intend to return it to the owner. Again this does not mean that the burden of proving the guilt of the defendant beyond all reasonable doubt is removed from the State. That is an area- of law that I wanted to go into with you.”
The defendant reserved an exception to this portion of the charge.
In Boyd v. State,
“The burden of proof is on the state, on the issue of larceny vel non, to establish beyond a reasonable doubt that the property involved was taken or appropriated animo furandi, which includes a taking or appropriation without the consent of the owner. * * * The recent possession of stolen property casts on the defendant the onus of' explaining his possession, and, if he -fails' to make a reasonable explanation, a presumption of guilt, arises which will support a conviction.”
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The earlier cases used the word “presumption” in this connection, but later cases hold the correct term is “inference of guilt.” Hale v. State,
The trial judge’s charge appears to have been derived from the language of the cases cited but what was said in those cases in our opinion was merely stated in holding the verdict of the jury to have been supported by sufficient evidence and was not intended to be given as an instruction to the jury.
In Haynes v. State,
“Now, gentlemen, it is the settled law of this state that the recent possession of stolen property, that is, possession shortly after the property is stolen, imposes on the possessor the onus, or burden, of making a reasonable explanation of his possession, and, if he fails to make a reasonable explanation of his possession that would be sufficient to support a conviction.”
In United States v. Allegrucci,
In Lefkowitz, supra, the trial court gave the identical charge as that condemned in Allegmcci. After having deliberated for some time, the jury returned to ask the court for further instructions -as to the burden of proof. The court stated:
“The burden of proof rests upon the Government throughout the- case,” and, “Bear in mind * * * the burden of proof is always on the Government,” and repeated the “burden of explaining” language of the charge. The court of Appeals held that the error in the charge was not corrected by reemphasizing'that the “burden of proof is always on the Government.”
The error in the charge in the instant case was not removed by using the term “burden of going forward with the evidence” instead of “burden of proof” and the instruction that “this does not mean that the burden of proving the guilt of the defendant beyond all reasonable doubt is removed from the state.”
Reversed and remanded.'