85 Ark. 138 | Ark. | 1908
(after stating the facts.) Appellant contends that the court erred in giving the following instruction to the jury: “The possession of property recently stolen, unexplained, or received that has been recently stolen, would be sufficient under this indictment to sustain a conviction, coupled with the fact that the property had been stolen and that the defendant knew that the property was stolen.” This instruction is erroneous because it was an expression of opinion by the trial judge as to the weight of the evidence. The objection to instructions of this kind is very clearly stated in the case of Duckworth v. State, 83 Ark. at page 195, where the court said: “The court has no right to point out what inferences may or should be drawn from particular facts in proof. Section 23 of article 7 of the Constitution expressly declared that judges shall not charge juries with regard to matters of fact. All the court had a right to say to the jury iri regard to the facts mentioned was that they might consider the evidence adduced to prove them in connection with the other evidence introduced, and if, upon such consideration, they believed that the defendant was guilty beyond a reasonable doubt, they should convict.”
The State urges that the exception to this instruction was not properly saved. The record shows that this instruction was objected to at the time it was given, and that it was the •only instruction to which objection was made. The fifth assignment of error in the motion for a new trial reads: “The court erred in instructing the jury, over the protest of the defendant, that the unexplained possession of property recently stolen by another was of itself sufficient to warrant a verdict of guilty of receiving stolen property.” The record shows that the instruction complained of was the only instruction asked or given on that point, and we think the assignment of error is sufficiently definite.
Reversed and remanded.
