delivered the opinion of the court. •
The appellant was indicted for burglary and larceny in the Montgomery Circuit Court, and at his instance 'a change of venue was granted to St. Charles county. On a trial in the St. Charles Circuit Court he was cоnvicted and sentenced to ,the penitentiary, and he has appealed from the judgment to this court.' _ yiie admission of illegal evidence, and th<3 giving' of improper instructions for the State, and the refusal to' give proper instructions for the appellant, are alleged as grourids against the conviction and in support o'f a reversal of the"judgment.
The evidence agаinst the-accused was wholly circumstantial, and consisted, among other things, of tracking four men (there being a slight snow on the ground) from tli^ place where the burglary and larceny was committed to thе house of one Spartan Mansfield, where the prisoner and three other men, who are all jointly indicted, were found. No other person at tlíat time was on the premises. The search was made and prosecuted the next morning after the offence
On instituting a further examination, a lot of burglars’ tools were found secreted in a stable a short distance from the house, and at another place divers other articles not mentioned in the indictment. The prisoner objected to all testimony regarding the burglars’ tools- and the other articles not named in the indictment, but the court-overruled the objection and admitted thе evidence.
The case of the State v. Wolf,
The evidence adduced on the trial, of the finding of the burglarious implements and the other goods not mentioned in the indictment, was not offered for the purpоse of showing the prisoner guilty of another and separate offence, whatever tendency it might have had that way. ■ The prisoner stood charged with burglary and larceny; immediately aftеr the commission of the crime four men were tracked in the snow to a certain house, where four men were found, the prisoner among the number; the fruits of the crime were found on the premises together with the burglarious instruments: the whole formed a part of the history of the transaction, and as such was admissible for the consideration of the jury.
The instructions will now be briefly noticed. The сourt of its own motion gave five instructions. The first is in the usual form, instructing the jury “that if they believe from the evidence-in the case,” &c. The second is as follows: .
“ 2. Although the jury may be satisfied that the stolen property mentioned in the indictment, together with burglars’ tools, were found in the house or stable and on the premises of Spartan Mansfield, and that the defendant was found the- morning after the burglary and larceny at the house of Sрartan Mansfield, yet they are instructed these facts are not sufficient of themselves to prove that the stolen property mentioned in the indictment was found in the possession of the dеfendant, and in the absence of any testimony showing defendant’s ownership or control of the house and premises where the stolen property was found, or that he was residing with the family of Sрartan Mansfield as an inmate thereof, the jury are instructed' that defendant is not called on to explain or account for the stolen property being found on the premises of Spartan Mansfield.
“ 3. If the jury entertain a reasonable doubt as to the guilt*499 or innocence of the .defendant, they should give him the benefit of that doubt and acquit.
“4. The jury are the exclusive judges of the facts, and of the weight and credibility of evidence. The tracks, the finding of the stolen property and the defendant at the same place, and the conduct of the prisoner, are circumstances which may be considered by the jury in connection with other facts and circumstances in passing upon the question as to the guilt or innocence of the defendant.
u 5. By a rеasonable doubt is meant not a mere possibility of the defendant’s innocence, but a real substantial doubt touching the guilt or innocence of the accused.”
To the giving of the abovе instructions, numbered, two, three, four, and five, the appellant by his counsel objected, and excepted at the time.
'The appellant then asked the following instructions-:
■“ 1; The fact that the defendant is found at the dwelling-house óf a person аt ten o’clock A. M. the next day after goods have been burglariously stolen and concealed there the previous night, does not of itself prove that such property was in his possеssion, and he is not called on to account for such property being there.
“ 2. Where tracks are traced from the place of tiie commission of an offence to the hоuse where the accused are found, and there is an exact correspondence proved between the tracks and the feet or shoes' of the accused, yet only in рoint of superficial shape, outline and dimensions, and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence, but cannоt be in itself safely relied upon on account of the general resemblance of the feet and shoes of men ; but if the jury in this case believe there was no exact correspondence between the tracks and feet and shoes of the accused, such evidence is wholly unreliable.
“ 3. The mere facts that burglarious tools were found concealed on thе premises of one Spartan Mansfield, and that defendant was found at said Mansfield’s house the next day*500 after tlie burglarious larceny bad been committed by persons from such bouse the prеvious night, do not prove the defendant guilty of participating in such burglarious larceny.
“4. Before the jury can find this defendant guilty, he himself must be shown by proper evidence on the part of the Statе to have been an actual participant in the actual commission of the burglary and larceny, or present to render any required assistance therein ; and in the absence оf such proof against the accused, the jury will disregard in this case all evidence of stolen property or burglarious tools found in the possession of other persons, or on the prеmises of Spartan Mansfield.
“ 5. The jury are instructed as matter of law, that, before they can find the defendant guilty, they must be convinced beyond a reasonable doubt that he is guilty as charged ; that thеy must so be convinced of the fact of his guilt, that they would be willing to act upon that conviction if it concerned them in matters of the highest importance to their own individual selves.
“ 6. The "jury are instructed that if there is a reasonable theory, consistent with the defendant’s innocence, which is not overcome-by the evidence, they are bound to give him the benefit of it, and acquit him.”
The court gave the second and sixth instructions, and refused to give the first, third, fourth, and fifth.
This court has often decided that it will not reverse where instructions are refused, although they present correct abstrаct propositions of law, provided the whole case has been fairly placed before the jury by other instructions. The second, fourth and fifth instructions,, given by the court of its own motion, fairly аnd correctly embody the law as applicable to the facts developed by the testimony. The first and third instructions refused were substantially set forth in the second one given to the jury, and the fourth and fifth asked were, we think, rightly refused. The instructions given by the court of its own motion, together with the second and sixth which were given at the instance of the prisoner, pre
The judgment is affirmed.
Motion for re-hearing filed and overruled.