The indictment charges the defendant with the theft of eighteen pairs of trousers of the value of $2 per pair, the property of L. Moke. It was proved on the trial that the defendant was found in the possession of two pairs of the stolen trousers very recently after the theft; and the evidence tends strongly to show that the eighteen pairs of trousers were stolen at the same time, from the same place.
Defendant requested the following special charge: “If you believe from the evidence that defendant is guilty of the theft of but two pairs of trousers from L. Moke, yo,u will in that case assess his confinement in the county jail for any time not exceeding one year, and fine not exceeding $500, or by imprisonment without fine.” The court gave this charge with the following additional instruction, viz.: “ The foregoing instruction is given with the following as explanatory thereto: If you believe from the evidence that eighteen pairs of pants were stolen at the same time and place from the said L. Moke, and that a pair of said trousers were found in the possession of the defendant recently after the same were stolen, and that the defendant failed and refused to explain how he came into the possession of said pair of trousers, you may infer the stealing of the whole property at the same time from said proof of the recent unexplained possession of a part of the stolen property. Decent possession of stolen property is, however, nothing more than a fact to be considered with all the other facts and circumstances in the case.”
*453think that portion of the above instructions which informs the jury that they may infer the guilt of the defendant of the theft of all the trousers from the fact of his unexplained recent possession of one pair of the same, is a charge upon the weight of evidence, and an invasion of the exclusive province of the jury. It is not for the court to tell the jury what inferences they may draw from. facts proved, except in certain specified instances in which the law has expressly established certain conclusions or presumptions as arising from a certain state of facts. In the instance before us, the law does not establish the inference which the court instructed the jury they might adopt. Such an inference is one of fact, and is not a presumption of law. It would not always be a proper inference of fact even. There might be circumstances which would preclude such an inference. Some other person than the defendant may at the same time and place, and without complicity with the defendant, have stolen all but the two pairs of trousers which were found in defendant’s possession.
It would have been proper for the court to have instructed the jury that, if they found from the evidence that the eighteen pairs of trousers were stolen at the same time and place, from the same person; and if they found from the evidence that the defendant was guilty of the theft of one or two pairs of said trousers, the fact that all of said trousers were stolen at the same time and place would be a circumstance which might be considered by the jury in determining defendant’s guilt of the theft of all the trousers. But the court went beyond this, and told the jury that the fact above stated warranted the inference that the defendant stole all the trousers. This, in effect, was stating to the jury that, if the defendant stole a part of the property, it having all been stolen at the same time and place, the law would infer that he stole the whole of it.
There was no exception taken at the time of the trial to this or any other portion of the charge, but in the defendant’s motion for a new trial the court’s attention was specially called to the error above discussed. We think the error is a material one, which may have resulted in injury to the defendant’s rights, and we therefore reverse the judgment and remand the cause.
Reversed and remanded,
[Opinion delivered June 13, 1885.]