State v. BullaState v. Bulla
- Reporters:
- Before:
- Norton
Thе defendant was tried in the criminal court of Buchanan county on аn indictment containing two counts, in the first of which he is charged with grand larceny in stealing a horse belonging to one Sampson, and in the seсoncl of which he is charged with receiving stolen property, knоwing it to have been stolen. Defendant was acquitted on the first, and convicted on the second count, and from the judgment of conviсtion has appealed to this court.
I. It appears from thе record that on the trial defendant offered himself as a witness, аnd was examined, and the state was then, over defendant’s objeсtion, allowed to introduce and examine witnesses touching his-general moral character. There was no error in this. Where a dеfendant criminally charged is examined in his own behalf, he. may be impеached as any other Avitness, except that on his cross-examination, he can only be enquired of as to such matters as he hаs testified to in his examination in chief. State v. Palmer, 88 Mo. 568; State v. Grant, 79 Mo. 113; State v. Clinton, 67 *599Mo. 380. As the cause, for a reаson yet to be given, must be remanded, in view of the latitude allowed in thе cross-examination of defendant and the witnesses who testified as to his general moral character, it may be well to remark, that in the re-trial, the cross-examination of defendant, should he agаin become a witness, should be confined to such matters as he mаy testify to. in chief, and that the witnesses, as to character, should nоt be allowed to testify as to single acts of moral delinquency.
II. Thе material error committed by the court was in the refusal of the following instruction:
“4. Unless the jury believe, from all the evidence, beyond a reasonable doubt, that the defendant bought or received thе horse, mentioned in- the indictment, from’ some other person, knowing said horse to have been stolen, they will find him not guilty as charged in the seсond count of the indictment, and the mere naked fact of the рossession of said horse by the defendant raises no presumptiоn that the defendant knew that said horse had been stolen by anothеr.”
In view of the fact which the record discloses, that, in the first count of the indictment, defendant was charged with grand larceny in stealing the property, and the further fact that the court, with reference tо this count, had properly instructed the jury that possession of stolеn property recently after the theft, raised the’ presumptiоn that the possessor was the thief, and in view of the further fact that defendant was charged in the second count, on which he was convicted, with receiving stolen property, knowing it to be stolen, we are of the opinion that the above instruction ought to have been given. While it is well settled in this state that the possession by a person of stolen property recently after the theft, raises a рresumption that he stole it, we have never gone so far as tо intimate that recent possession of stolen property, by a person who is charged with receiving stolen property, knowing it to be stolen, raises *600a presumption that he had knowledge that it was stolen, but on the contrary, we are of the opinion that in such case no such presumption is to be indulged in.
Under the circumstances of this case, the instruction asked for was not a mere abstraction, having no practical application, to the facts, and it was error to refuse it, and for this error the judgment will be reversed and cause remanded.
All concur.