The petition in error contains 11 assignments. The eighth assignment complained of the following instructions given by the court below to the jury:
"If, however, you do not find from the testimony in this case, beyond a reasonable doubt, or the evidence rather, that he stole these mules, or either of them, but that he did receive these mules soon after they were stolen with the knowledge that the property was stolen, or under such facts or circumstances as would cause a reasonably prudent man to believe they were stolen — that is, under *Page 199 such facts as would put a reasonably prudent man upon inquiry before he took the property — then, in that state of the case, if the evidence justifies it beyond a reasonable doubt, you should find him guilty of having received stolen property."
The tenth assignment complained of the following instruction given to the jury:
"Now, if you believe from the testimony that he was found with this property the next morning after the taking of it — the property was taken, say, in the night, and he was found with it the next morning, or soon thereafter — and the law does not define any particular time, but `soon thereafter' means soon thereafter from all the circumstances of the case, and there has not been a reasonable explanation by him of having that property in his possession, if it was in his possession, that is for you to say whether it was found in his possession or not, and, if he has not made a reasonable and fair explanation of that, the jury is to assume that he stole the property, or received the property, though he might not have stolen it."
The Attorney General filed in this case the following confession of error:
"The appellee in the above-entitled cause, by W.C. Reeves, Assistant Attorney General, of the state of Oklahoma, hereby confesses error in said cause, same being based on the giving of the instruction shown at page 143 of the printed record and set out in the eighth assignment of error of appellant; also the giving of the instruction shown on page 143 and set out in the tenth assignment of error by appellant."
It is the opinion of this court that the Attorney General was fully justified in filing said confession of error, for the reason that the court did err in giving each of said charges. These questions have been disposed of by this court. In the case of Slater v. United States, 1 Okla. Cr. 275, 98 P. 110, this court holds:
"It is error to instruct the jury that the possession of property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence."
And in Dan Askew v. United States, ante, p. 155,101 P. 121, this court holds: *Page 200
"The inculpatory inference to be drawn from the possession of property recently stolen is not a presumption of law, but is a deduction of fact to be drawn by the jury alone, unforestalled by any instructions from the court upon the weight of the evidence. It is error in a larceny case for the court to instruct the jury as follows: `The unexplained possession, if there should be such unexplained possession, of recently stolen property, is primafacie, but not conclusive, evidence of his guilt.'"
The same doctrine has also been held in the following cases:Haley v. State, 49 Ark. 148, 4 S.W. 746; Shinn v. Tucker,37 Ark. 581; Fitzpatrick v. State, 37 Ark. 239; Keith v. State,49 Ark. 439, 5 S.W. 880; Smith v. State, 58 Ind. 343; Underwood v. State,72 Ala. 220; Lehman v. State, 18 Tex. App. 174[18 Tex.Crim. 174], 51 Am. Rep. 298.
Adhering to, and approving, our decisions in the case ofSlater v. United States, and Askew v. United States, and in conformity with the many other well-considered cases above cited, we find that the court committed prejudicial error in the instructions complained of in the eighth and tenth assignments of error herein. This case is therefore reversed and remanded for a new trial.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.