Conviction was had in this case for receiving and concealing stolen property. Defendant was not in actual possession of the plow. It was found in his wagon, which was being driven by Brooks Pollard and Dullivan. Defendant denied theft of the plow, or any knowledge of the fact that a stolen plow was in the wagon. He was at the time riding fifteen or twenty steps in rear of the wagon, which was being driven along the public road. In this connection the court charged the jury: "Possession of recently stolen property is presumptive evidence of the guilt of the possessor, but such presumption may be strong or weak according to the circumstances of the case, and if an explanation is made, if it is natural, reasonable, and probably true, it operates to rebut the presumption of guilt arising from the possession of the property, and in such case, if such explanation be not shown to be false, further evidence of the defendant's guilt is required to warrant conviction."
This charge was excepted to upon several grounds. It was clearly erroneous and upon the weight of the evidence. Possession is but a circumstance to be considered by the jury along with the other evidence in the case. To warrant a presumption of guilt from possession alone, such possession must be recent, personal, unexplained, and must involve a distinct and conscious assertion of property by the accused. While an unexplained possession of property recently stolen may justify a verdict, yet the court would not be authorized to order a conviction, or to charge them, as a presumption from the evidence, that he is guilty. And to authorize the conviction under such state of case, the unexplainedpossession is a sine qua non.
Again, the "reasonable account" is dependent upon the possession of the property. If there be no possession there should be no explanation of possession, for there is nothing to explain. Under this state of case it would not be proper to submit the question of reasonable account of the possession of property recently stolen, because the issue is not presented by the evidence. It is not a part of the case. It is not always proper to instruct the jury in regard to the account given by the accused of his possession of the stolen property, even when he is in actual possession at the time of making the statement. Such *Page 203 charge way lead to a conviction, not because of guilt, but because the jury have found the account given to be false. An apparently reasonable account may be proved false, while an apparently unreasonable account may be true. One may be more conclusive of innocence than the other is of guilt. They are questions of fact to be considered with the other circumstances of the case. The charge was not only upon the weight of the testimony, but threw the burden of proof on the accused to overcome the "presumption of guilt." Legal presumption of innocence and "the reasonable doubt" obtain in favor of and not against the defendant. The State must overcome both in order to secure a legal conviction.
A theft being shown, and the accused being found in possession of the property stolen recently thereafter, gives an account of his possession; such an account then becomes a fact or circumstance in the case, to be weighed by the jury in arriving at their verdict. But it does not follow that a conviction should be had simply because his statement may not be believed by the jury, for this would hinge the case upon the falsity of his statement, and not upon his guilt. He should be proved to be guilty beyond a reasonable doubt. Falsehood is not necessarily always conclusive evidence of guilty possession of property recently stolen.
During the argument one of the State's counsel remarked to the jury: "If any one of you, or any respectable citizen of this county, was charged with crime and put upon trial, the first thing you would do, the first thing any honest citizen would do, would be to bring before the jury his neighbors and friends and prove before them his reputation and character for fair dealing and honesty, and show how he stood before the community in which he lived; any man not a stranger in the county would have his neighbors to show his character. Tom Pollard has lived in Dallas County for more than twenty years; he was raised in Dallas County; yet he has brought no witness to speak in his behalf of his character." Exceptions were reserved to this line of argument, because defendant had not placed his character in issue, and there were no facts in the record to warrant the argument. The court was not only requested to require counsel to desist from such comments and instruct the jury to disregard same, but special charges were prepared by defendant and asked to be given in charge to the jury instructing them to discard the remarks, and these were refused by the court. The argument was not only improper, and unwarranted by the testimony, but evidently prejudicial to defendant. The court should have given the requested instructions. Willson's Crim. Proc., sec. 2321.
The indictment contained two counts: The first charging theft; the second, receiving and concealing stolen property. In applying the law of principals to the evidence the court charged the jury: "And *Page 204 if you find and believe from the evidence that the defendant Tom Pollard neither took the plow under such circumstances as to constitute theft, nor actually received or concealed the same after taken, but was actually present and knowing the unlawful intent of others who did so take, receive, or conceal said plow, and aided said parties so taking, receiving, or concealing said plow, by acts, or encouraged them by words or gestures, you will find him guilty." A bill of exceptions was reserved to this charge. "Find him guilty" of which offense? The charge is, to say the least of it, confused and misleading. Under the terms of it the jury were authorized to convict defendant of theft if he was a principal to the crime of receiving and concealing stolen property, or they could convict of receiving and concealing stolen property if he was shown to be a principal to the crime of theft. This is not the law. He can only be convicted of the offense of which the evidence shows him guilty. The charge should directly and pertinently apply the law applicable to the case, and where more than one count is submitted by the court for the consideration of the jury it should be pertinently applied to each count.
The other questions will hardly arise upon another trial, and we pretermit a discussion of them.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.