I. I concur in the result of the majority opinion in this case. In my judgment the case before us is one of circumstantial evidence. The question to be determined by the jury in the case was, did the defendant steal, take and carry away the property of the prosecuting witness? No eye saw him do it. The facts shown (1) that Williamson owned the tarpaulin and (2)Circumstantial that it was taken from his place, without hisEvidence: consent, might be circumstances tending to show aPresumption. theft of the article by some one, but are not direct proof of a theft by defendant. So too, possession of recently stolen property may be a circumstance tending to show that the defendant was guilty of the theft, but it *Page 157 is not direct evidence of the theft. One cannot read the collated case-law upon the subject without reaching the conclusion that this case is one of circumstantial evidence. The fact that our Missouri law makes the circumstance of possession presumptive evidence of guilt, does not change the situation. On this question our State stands practically alone, and our holdings are wrong in principle. It is at most simply a presumption based upon circumstantial evidence.
In the notes on the case of State v. Overson, 30 Utah, 22, in 8 Ann. Cases, 798, it is said: "Recent possession of stolen property is not positive evidence of theft. It is but a circumstance tending to establish it. . . . Hence when possession is relied upon to establish inferentially a taking of the property, it is a case of circumstantial evidence, and the trial court should charge on the law relating thereto." The annotator cites a long list of cases, which might be read with profit.
In the notes to Beason v. State (Texas), 69 L.R.A. l.c. 198, it is said:
"The finding of property that has been stolen in the possession of the accused, which possession he does not satisfactorily excuse, explain or account for, or does so untruthfully, has been held to be prima-facie evidence that he committed the larceny; but the single possession of such property, shown in the accused, is only a circumstance tending to prove his guilt, and which, without any positive proof as to the taking, renders the case one wholly depending upon circumstantial evidence, and a failure of the court to charge upon the subject is error; and the cases in this subdivision are those which, under varying circumstances, point out this rule."
The long list of cases cited and analyzed bear out the foregoing excerpt from the language of the annotator. I have found two or three cases which hold that when the defendant goes on the stand and admits the possession, and tries to explain it, then the case is not one of circumstantial evidence alone. The great weight of the cases are the other way. The reason is the other *Page 158 way. The mere admission of possession is not different from proof of possession. If the defendant does not go upon the witness stand, and the State proves his possession, it is a circumstance showing guilt, and under our law raises a presumption of guilt. His admission of possession does not make the possession anything more than a circumstance tending to show the theft. In my judgment the present case was one of purely circumstantial evidence, and under the law the trial court was compelled to give an instruction upon circumstantial evidence, and this was not done. This failure was error.
II. I do not agree to the proposition that the failure of the court to instruct upon circumstantial evidence is not here for review. I fully agree with the sound and exhaustive opinion of KENNISH, J., in State v. Conway, 241 Mo. l.c. 283, et seq. I commended him at the time for putting his divisionInstruction of the court aright upon a question that had beenNecessary. fearfully mooted in the then later cases. I regretted to see the court thereafter depart in a way from the Conway Case. Such departure has wiped out the statute, which the Conway Case gave a righteous effect. I shall not re-argue the question, because it is ably argued in Conway's Case. That case should be the law, and is the reason of the thing. At least, I shall not concur in a repeal of the fourth sub-division of the statute (now Sec. 4025, R.S. 1919) by court decision. Woodson and David E. Blair, JJ., concur in these views.