This is a conviction for the theft of lumber, the appellant being fined twenty-five dollars and imprisoned in the county jail one day.
A bill of exceptions was reserved to the following charges:
Third charge. “ Possession of the person unlawfully deprived of property is constituted, in all cases, where the person so deprived of possession is at the time of taking lawfully entitled to the possession thereof as against the true owner.”
“5. The intent in all criminal cases is judged from the act.”
“ 7. If you believe from the evidence that the property taken, as charged, was not the property of the person as charged, beyond a reasonable doubt, you will acquit the defendant.”
“9. If stolen property is traced to the recent possession of the defendant, he must show that he came lawfully by it, or the law considers him the thief.”
“ 11. If the jury find that the property alleged to have been stolen was the property of the defendant, and that he had exercised actual control, care and management over the same, prior to the alleged taking, you will find the defendant not guilty.”
“ 12. If you have any reasonable doubt as to the guilt or innocence of the defendant, you will give him the benefit of the doubt, and acquit him.”
The third subdivision of the charge is abstractly correct, and if there was evidence in this case tending to show that the prosecutor was entitled to the possession of the lumber, as against the defendant, the owner, it would have been a proper charge. This, however, was not the case; hence the charge was calculated to injure defendant.
Fifth charge, to wit: “The intent in all criminal cases is judged of from the act.” What act? The taking? The intent is judged of by all the circumstances attending, remotely or immediately, the taking—the facts relevant.
“7. If you believe from the evidence that the property *83taken, as charged, was not the property of the person, as charged, beyond a reasonable doubt, you will acquit the defendant.” By this the jury are required to believe, beyond a reasonable doubt, that the property was not the property of the prosecutor. The rule is clearly and emphatically the converse of this, requiring the jury to believe, beyond a reasonable doubt, that the property was that of the prosecutor.
“9. If stolen property is traced to the recent possession of the defendant, he must show that he came lawfully by it, or the law considers him the thief.” Upon this predicate, the law does not so consider him; recent possession of stolen property alone has, we believe, never been held sufficient to sustain a conviction. Recent possession unexplained, when the circumstances demanded explanation, has been and is held (we think justly) sufficient. This applies to cases in which there is no evidence except the corpus delicti, recent possession, a demand for explanation, and a failure to explain. If there be other evidence, either for or against defendant, it may or may not be sufficient, depending always on the nature and weight of the evidence. Though the defendant may be in recent possession of stolen property, he is not required to show his possession lawful in the strict sense of that word.' In a great many cases his acquisition of the property may not be lawful, yet amply sufficient to rebut the conclusion sought to be drawn from his possession, by the prosecutor. He, in acquiring possession, may have been a mere trespasser. Some one else may have placed him in possession wrongfully and unlawfully. This is merely an illustration of the ways and means by which the possession of the property, though stolen, may be unlawfully acquired, without a fraudulent or thievish intent.
“11. If the jury find that the property alleged to have been stolen was the property of the defendant, and that he had exercised actual control, care and management over the same prior to the alleged taking, you will find the defendent not guilty.” This, upon the trial of this case, was a charge of the greatest importance. Its effect, the evidence tending strongly to prove, if it did not conclusively prove, that defendant was the just and legal owner of the property, was evidently to cut him off from this defense, unless he could show that he had exercised actual control, care and management over the property prior to the taking. We will not discuss this charge, it being beyond the *84reach of criticism. Law, justice and the rights of the citizen are terribly maltreated by the principle therein contained.
What shall we say of the twelfth, which is as follows: “If you have any reasonable doubt as to the guilt or innocence of the defendant, you will give him the benefit of that doubt, and acquit him.” Notwithstanding that the eleventh charge deprived defendant of a just and complete defense to the accusation against him, still we cannot comprehend how it were possible for the jury not to acquit the defendant if they observed the instructions of his honor below contained in this twelfth charge. By it they are instructed to acquit if they have any reasonable doubt of defendant’s guilt or innocence. If they doubt guilt, they must acquit; and if they doubt innocence, they must acquit. Was there no doubt of either? The jury, by their verdict, say they believe him guilty; hence, of necessity, they must have doubted his innocence; and if so, under this charge, they should have acquitted him. The stronger the belief of guilt, the greater the doubt of innocence.
In every prosecution guilt is the affirmative proposition, and must be established beyond a reasonable doubt. Jurors are not required to believe defendant’s innocence in order to acquit. They are not called upon to pass upon the defendant’s innocence, but they are called upon to determine whether or not the State has proven beyond a reasonable doubt the affirmative proposition, to wit, the guilt of the defendant.
The next question presented is the sufficiency of the evidence to support the verdict. We are of the opinion that this verdict is not only unsupported by any evidence, but is veryclearly and unquestionably against the evidence; and to permit it to stand would be a monstrous outrage. Not only so; its sanction by this court would tend to degrade and bring into contempt the solemn proceedings of the courts of the country.
It should be the pride and greatest effort of the courts of the country to protect the property, character, liberty and life of especially the innocent, law-abiding and virtuous citizens. By this verdict and judgment this citizen has not only been deprived of his property and liberty, but his character and that of his family stand blasted forever. The brand of a thief has been indelibly stamped upon him, not only without law and without evidence, but directly in the face of the evidence. Shall this court permit such verdicts, with all their dire consequences, to stand? By no means; for we are vested with the *85power to reverse judgments upon the ground of the insufficiency of the evidence.
For the errors noted in the charge, and because the verdict is not supported by the evidence, the judgment is reversed and the cause remanded.
(The reporters will insert the statement of facts.)
Reversed and remanded.
Opinion delivered April 25, 1883.