| Mo. | Jan 15, 1852
delivered the opinion of the court.
It will be seen from tbe above statement, that various points have been raised in the court below, many of which will be passed by without notice.
The point in relation to the change of venue, is not supported by the decission of this court in the case of Reid vs. The State, 11 Mo. R. 379. In that case, it is obvious that Reid did give previous notice, and that lie gave it as soon as he could after he became satisfied of the existance of the cause for wiiich he so -ght the change of venue
It is the safer course for the party who wishes to change the venue, to
As to the refusals of the court to continue this case, on the affidavit made by the defendant below, and the refusal to permit an amendment to be made to the affidavit, there is no error. In matters which address themselves to the discretion of the court, we must see very clearly an abuse of this power before we will reverse.
There is no error in the courts refusing to permit the defendant to give in evidence the warrant of the committing magistrate, or the indictment pending against Barker. This was clearly unadmissible. These minor points have been noticed in order that they may not again be brought here.
The instructions will now be noticed. This court will not reverse the judgement of the court below, for the refusal to give instructions, provided it appears from the record, that the law of the case has been laid down properly and fairly by the court, in the instructions which it did give to the jury. Instructions are to enable the jury to understand the law of the case. A few short, pithy and sententious instructions, embodying the law of the case, will always be better inderstood, and will have more effect upon the triers of fact, than a long list of instructions, loaded with words, generally so envolved that it tends to confuse rather than conduct the jury to a proper conclusion.
The second instruction, given by the court on the part of the State, which is as follows; “if goods to the value of ten dollars or more, described in the indictment, were stolen, and afterwards found in the possession of defendant, it is prima facie evidence of guilty possession, and if unexplained by him is conclusive evidence of his guilt,” does not contain a proper exposition of the principle of law which, no doubt, the court designed to give. This proposition is too large; too unlimited. Had it been qualified by stating “recently” after the commission of the theft the goods were found in the possession of the defendant, such possession was prima facie evidence of guilt it would have been proper. But here there is no limit as to time. This point was decided by this court in St. Louis at the last October term, in the case of The State vs. Wolf, not yet published. Greenleaf says, “but possession of the fruits of crime recently after its commission, is prima facie evidence of guilty possession, and if unexplained, either by direct evidence or by the attending circumstances, or by the character an habits
A theft having been committed, and the goods being soon after found either on the prisoner’s person or in his house, &c., he is prima facie deemed guilty. Here, however, we must attend to several things; and first of the time: Lord Hale says, if the goods be found with the prisoner, the day of the theft being committed, this is a strong presumption; and yet, even in such a case, C., a very subtle horse thief, being pursued, procured B. to lead the horse under pretence that' he, C. Was pressed to go aside; thus escaping and leaving the presumption to fall on B., who was condemned and executed, though tried before a very learned and wary judge: 2 Hale’s P. C. 289.
In the case of The State vs. Adams, Haywood’s Rep. 1 vol. 464, the court said, where a horse is stolen and found in the possession of a man, at such a distance from the place where the horse was missing, in so short a time after, as shows he must have come directly from that place, and without any loss of time, that is such evidence as a jury may infer the guilt of the prisoner upon, as it raises a violent presumption against him that be was the taker. This principle is so generally understood that it is needless to cite authorities further. It must be recently, and this depends much on the nature of things stolen, both as to time and force of the presumption.
For this second instruction, therefore, the judgment of the court below must be reversed. This case is remanded to be further proceeded in according to the views of this court, the other judges concurring,.