The exceptions to the information do not seem to be well founded. The procedure was in accordance with the case of People v. Lewis, 64 Cal. 401, and with recent decisions of this court. (Ex parte Young Ah Gow, 73 Cal. 438.)
The court instructed the jury, at the request of the prosecution, as follows: “ The jury is instructed that, if the defendant was in recent possession of the stolen goods, the law raises the presumption that he is the thief; and this possession, if not competently explained by the defendant, is conclusive evidence of his guilt.” This instruction is plainly erroneous. The effect of testimony' *84is a question for the jury, and not for the court, although this court has held of this precise testimony, — inconsistently with the general rule, perhaps,—that it is not sufficient to justify a verdict of guilty. Then, beside assuming that the goods were stolen, the instruction states that the defendant must explain the recent possession, ignoring the proposition that the evidence of the prosecution itself may afford such explanation in whole or in part.
The instructions given at the request of the defense, however, were as follows: “1. The possession of stolen property, although a circumstance in determining the. guilt of .the defendant, is not alone sufficient to convict; 2. The possession of stolen articles soon after the missing of the same is an insufficient circumstance upon which to convict the defendant.” These instructions are clearly in conflict with that given at the request of the prosecution. The point was material, and read together, the jury would still be left in doubt as to the law. If we suppose the jury took the instructions given at the request of the defendant as the correct statement of the law, still it leaves that portion of the instruction given at the instance of the prosecution to stand which is not in conflict with that asked for by the defense to stand. The effect of this would be'to instruct the jury that the recent possession of stolen goods raises a presumption of guilt, although not sufficient to convict. This is still a (jharge as to the value and effect of evidence.
We see no material error in the other instructions of the court.
Judgment reversed, and cause remanded for a new trial.
Searls, C. J., McFarland, J., Sharpstein, J., Paterson, J., Thornton, J., and McKinstry, J., concurred.