| Ill. | Nov 20, 1882
delivered the opinion of the Court:
Plaintiff in error was indicted in the Will circuit court for larceny. The first count charges him with the larceny of one horse, the property of one Barnes. The second count charges him with the larceny of one horse, one buggy and one harness, the property of the same person. On a trial the jury found plaintiff in error guilty as charged in the second count in the indictment, and fixed his term in the penitentiary at four years. It is urged that the indictment is bad, and the court erred in overruling a motion to quash. Also that the evidence fails to support the verdict, and the instructions for the People are erroneous. For these reasons a reversal is asked.
It is urged that the second count is double, as it charges the stealing of a horse, and a buggy and harness; that horse stealing constitutes a distinct offence, and the stealing of a buggy or a harness another and different offencethat the punishment for horse stealing is confinement in the penitentiary not less than three nor more than twenty years, whilst the punishment for grand larceny of other property is fixed at not less than one year nor more than ten years. It is therefore claimed that the stealing of a horse is, under the statute, a different and distinct crime from the stealing of a buggy or a harness; that they are separate offences, created by different sections of the statute, which impose different degrees of punishment, and for that reason the count charges two separate and distinct crimes, and is bad because of duplicity, and the judgment should have been arrested. In this case there were not two crimes. It was one united, continuous and indivisible act, consisting of the larceny of one horse, one buggy and one harness. It would be unheard of to permit the people to split up such a larceny into two or more separate crimes, and to allow as many different and separate convictions. To be duplicity there must be joined in the same count different, separate and distinct crimes, committed at different times. When it is but one act, fully completed at the same time, there can be no duplicity, however many or different kinds or articles of property are stolen, and it being but a single larceny, it is not error to so charge it in one count in the indictment. Had the horse been stolen at one time, and ’ the buggy and harness at another, then there would be force in the argument, because there would have been two separate and complete crimes. But by no process of reasoning can there be held to be more than one crime in this case. The jury heard the evidence, and it was for them to determine whether the accused took the property, and if so, what was his purpose in taking it,—whether with an honest or felonious intent. They have found it wTas with a felonious purpose, and we are satisfied the evidence required the finding of their verdict. Because the owner found the horse a few hours after he was taken, not fan distant from the place from which he was taken, does not necessarily rebut the presumption raised by the circumstances in evidence that it was stolen. On the contrary, from the evidence there is scarcely a doubt that plaintiff in error, almost immediately after stealing Barnes’ horse, took another horse from a buggy, turned Barnes’ loose, and hitched the other horse to Barnes’ buggy. From this fact the jury could not reasonably find otherwise than he took.Barnes’ horse with a felonious intent.
The possession of property recently stolen is evidence upon which a jury may convict the person having such possession, unless he shows the possession was honest and lawful. When such possession is shown, it devolves on the accused to rebut the presumption of guilt thus raised, by explaining and showing his possession to be innocent and rightful. The abandonment of Barnes’ horse, under the circumstances, does not repel the presumption that he took the horse, or that the taking was felonious. He was seen in possession of the property almost immediately after the taking, which was evidence of the larceny, and he offered no evidence to rebut this presumption of his guilt. In view of the entire evidence, the jury were warranted in finding the verdict they did.
Complaint is made that the court erred in refusing instructions asked by accused. The instruction asked and given for him embraced all of the correct legal propositions contained in the refused instructions. Nor, in view of all of the instructions given, are we able to see that the jury could have been misled. They were fair, and stated the law correctly, and this being so, there is no ground for a reversal, and the judgment of the court below must be affirmed.
Judgment affirmed.