State v. HaleState v. Hale
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Thе defendant was indicted for the larceny of сertain cattle, tried and convicted, and from the judgment of conviction brings this appeal to this court. There are numerous assignments of error, but after an attentive examination of them wе are satisfied there is but one that is material and error. The court instructed the jury that “ when property recently stolen is found in the possession of any person, such possession raises a рresumption of guilt, and unless he shows that he camе honestly into the possession of said proрerty the law will presume that he stole the samе.” The objection to this instruction is that the weight to bе given to fact or circumstance is, under our statute, to be left to the jury; that the court is not authorized to pass upon the weight to be given to any circumstance, or to direct the jury in referеnce thereto. It is often said’ that the recent possession of stolen property by the рrisoner, unexplained, raises the presumptiоn that he is the thief, and that this presumption shifts the burden frоm the State to the prisoner. But the pre-’ sumptiоn raised by such circumstances is one of fact, from which the jury may infer guilt. There is no legal presumрtion of guilt from the recent possession of stolen property.
In Conkwright v. People, 35 Ill. 204, it was held error to instruct a jury, uрon a trial for larceny, that possession оf stolen property soon after it is stolen is оf itself prima facie evidence of theft by the possessor, and the burden of proving his posses*353sion to have been honest is there thrown upon him. The question is undoubtedly a vexatious one, and upon it, as Mr. Bishop says, “ all sorts of utterances are to be found in thе books.” (2 Bish. Crim. Proc. § 740.) But we regard it as a question of fаct and not of law, to be submitted to the jury, and for them to determine whether the defendant is the guilty party or not. In Curtis v. State, 6 Cold. 9, the cour| say: “The possession of suсh a chattel as a horse, two months after thе theft, is a circumstance to be considerеd by the jury; but it does not, even unexplained, raise a conclusive presumption of the prisonеr’s guilt. The jury may, and should, give it proper thought as. evidence; but the matter is for them, and they are not bоund in such case to convict the prisoner unlеss they are, upon the whole evidence, satisfied of his guilt.” In State v. Hodge, 50 N. H. 510, this whole subject, and the authorities upon it, is ably and thoroughly reviewed, and the result there rеached is in conformity with our views.
We think the instruction was error. The judgment must be: reversed, and a new trial ordered.