24 Fla. 147 | Fla. | 1888
delivered the opinion of the court:
The indictment in this case was a joint one against plaintiff in error and her sister, Mattie Young, for larceny, charging them with the stealing of certain articles of property belonging to J. A. Henderson. ' On arraignment the latter pleaded guilty, the former not guilty, but on trial was convicted. A motion was made in her behalf for a
The motion, besides the usual grounds, was based on the refusal of the court to give the following instruction aslced for plaintiff in error, except with the qualification added thereto:
“In an indictment for larceny one cannot bo convicted as a principal unless actually or constructively present at the taking aud carrying away of the goods. Previous-consent to or procurement of the caption and asportation will not make one a principal, nor will subsequent reception of the thing stolen, or the aiding aud concealing or disposing of it have that effect.” The court qualified the instruction thus: “But if the goods are found in the joint possession of defendants and she has failed to make satisfactory explanation of her possession, then the law presumes her to be the thief, and you may presume her present at the taking and carrying away,” and, as thus qualified, gave it.
The plaintiff in error assigns for error this qualification of the instruction, aud the refusal of the court-to grant a new trial.
The instruction proposed was correct. 1 Whar. Cr. L., sec. 927; State vs. Hardin, 2 Dev. & Bat., 407. A question arises, therefore, whether the qualification was properly added, and this is to be considered with reference to the rulings of this court as to the propriety of any qualification of an instruction asked at the trial, as well as with reference to the correctness of the qualification, if one can be allowed. In P. & A. R. R. Company vs. Atkinson, 20 Fla., 450, the court held that under the statute the qualification of an instruction was equivalent to refusing it, and .that, “ this would have been error if the alteration had es
Under this rule, we are to consider whether the qualification complained of by plaintiff in error was erroneous. The instruction asked for was, in itself, as we have said, correct; but we can see that the case was one in which the Judge would feel prompted to add something to bring that instruction within the full case before him. Two persons had been indicted. One having pleaded guilty, and the evidence as to the other, who is plaintiff in error, having shown that soon after the theft they had gone together some twenty-live or thirty miles from the place of the theft,
We content ourselves with simple reference to- a few of the authorities which sustain these views. 1 Greenleaf on Evidence, see. 44; 3 Ibid, secs. 31, 33; Wharton’s Cr. Ev., sec. 758; State vs. Raymond, 46 Conn., 345; State vs. Hodge, 50 N. H., 510; Stokes vs. State, 58 Miss., 677; State vs. Smith, 2 Iredell, 402; Bryant vs. State, 16 Tex., 144; McCoy vs. State, 44 Tex., 616; Hall vs. State, 8 Ind., 439. The doctrine of these cases is of special force in this State, because in harmony with the statute which confines the court in its charge to the jury to the law of the case, by which is meant that conclusions of fact are left exclusively to the jury. But this does not prevent the court from stating what the law authorizes the jury to presume, as to fact, if not put in a way to leave no exercise of judgment for the jury-this being different from charging that the law itself presumes the fact.
In this ease the presumption, whether of law or fact, stretches beyond the proper line. To say that guilt was to-be presumed from unexplained joint possession,, and further that the jury might presume the party present at the taking and carrying away of the goods, was to take from the-jury any consideration of the testimony as to the whereabouts of plaintiff in error on the night of the theft, and confine their minds to the effect of unexplained possession.. We think this clearly erroneous.
It is needless to consider other errors assigned, as plain