dissenting.
The principal witness in this case, Norman Bonner, swore that he was an inmate of the Iowa penitentiary, and before that that he was in the Missouri penitentiary. He claims to have been convicted of felonies three times. He seems to have been permitted to go to Joplin, Missouri, to the deathbed of his mother. There he escaped from the guards and took his 18-year old brother to Kansas City with him, and then to Falls City, Nebraska, where he broke into the freight cars of the Chicago, Burlington & Quincy Railroad Company and proceeded to steal. He is shown to be a professional thief. He claims that he sold the stolen goods to the defendant Bloom. Bloom was keeping- a little store at Falls City. The charge is that he (Bloom) purchased personal property belonging to the Chicago, Burlington & Quincy Railroad Company, knowing that the same had been stolen, and with the intent to defraud the owner. I do not like to send anybody to the penitentiary on the testimony of such a witness as Bonner, and especially if he is contradicted and also contradicts himself. Both is done in this case. His story is in many respects unreasonable and improbable. While the facts should be found by the jury, the reviewing court cannot be expected to shut its eyes to the incongruous things pictured by the witness, nor is it expected to be deaf when the witness with particularity relates what is improbable, and his testimony is controverted as far as it goes. One of the improbable things in his statement is that he made seven trips to the store on this particular Sunday. He claimed to be carrying up- the goods. It is unlikely that any man of intelligence would go seven times into a store with grips on Sunday. He would be almost sure to attract the attention of the public. He also claimed that part of the time he went *718in where there was a board off in the bach fence, and came out at the front. That would be equally likely to attract attention. He claimed to have got acquainted with Bloom when Bloom tvas at Lincoln. He claimed the acquaintance orignated through Bloom’s croohed work, but on further examination it seems that he had never seen Bloom while he lived at Lincoln. Later on he did not know whether Bloom had ever lived at Lincoln or not. He testified that he never bought any goods of Bloom while he lived at Wymore; that he never sold him any while Bloom was living at Wymore. When closely pressed as to how he came to get acquainted with Bloom he said: “If I would tell you I would incriminate some of my partners.” A little later on he claimed that he stole these particular goods because Bloom ashed him to. The evidence shows that he came direct to Falls City, and therefore he had no opportunity to see Bloom. He testified that he broke into the cars before he got to Falls City; that he broke into the cars on the way to Falls City. He seems to have lost no opportunity to avoid telling the truth. He cheerfully testified that after he got to be 18 or 20 years old he was in the penitentiary most of the time. He testified that he was making the trips to Bloom’s store on Sunday all day. The other brother said the defendant only made three trips. Norman Bonner testified that there were other people in the front room that day; that Bloom and himself would go in the back room, and then come out into the front room to settle up; that would be before people. It is not a very likely story that they would settle there in the presence of a crowd of people, but, of course, if Bloom was guilty, they may have done so. He testified that Bloom paid him about $80, and that it was mostly paid in silver. He testified that he gave the money to his brother. His brother testified that Norman never gave him any money, neither that day, nor the next day, nor at any time. Norman seems to have kept all of it, if there was any. Norman testified that he carried up two grips each trip on that Sunday. Sadie Halbert testified that the defendant, Louis Bloom, was out to their house on that day; that he came *719out about half past 10 or 11 o’clock, and that he left at 4 or 5 in the afternoon. William Honea testified that he was at Louis Halbert’s house on Sunday, the 21st of July, when Bloom came there about half past 10 or 11; that Bloom ate his dinner there, and left between 4 and 5 o’clock that afternoon. W. H. Guilliams testified that he knew Bloom, and saw him at Halbert’s on that Sunday ; that he ate dinner with him. Jesse Smith testified that he worked for Louis Halbert, and saw Bloom there at Halbert’s house that Sunday, July 21, 1912; that Bloom came down to the sawmill where he was at work. Mrs. Bloom’s statement that the goods were brought there in a big bundle is not unreasonable. The cigars were in a grip. She denies that Bonner came into the store the back way. The defendant testified to making the trip out to Halbert’s place, and that he was there on the 21st day of July, 1912; that he did not see at his store either Merle Bonner or Norman Bonner until the officers came after the goods; that he never bought any goods of either one of the boys; that he never sold any goods in the store that did not belong to him; that he never sold any cigars out of the valise; that he never opened the valise. He also testified that there was no fence between the back part of the building and the alley; that it had always been open. This was a fact or it was not a fact. If it was not a fact, it was easy to show it. Amos E. Gantt thinks the fence may have been there, but is uncertain. John Wilson testified that he did not recollect ever seeing a fence at the rear of Bloom’s premises; that there might have been a fence at one time, but there had not been one there for the last several years.
This is very rickety testimony upon which to send a man to the penitentiary, even if he is described as a JeAV by the young man who voluntarily confesses that he is himself a burglar and a thief, and who tries by his testimony to bring Bloom down to a level with himself. This young man Bonner not only makes an assault upon this particular Jew, but he makes an assault against a large number of Jews, when he testifies that they are in the habit of buying stolen goods. He was probably testifying in that way for *720the purpose of securing the conviction of Bloom. As he had not seen Bloom before for many months, nor recently until after the goods were stolen, that was a subject upon which he probably had a good deal of anxiety. He seems to have indicated this anxiety. He characterized the Jews as being in the habit of buying, stolen goods, and then spoke of Bloom as a Jew. In addition to that, lie tried to create the impression, without any apparent foundation for doing so, that he and Bloom had been guilty of- crooked transactions together in Lincoln.
It is in evidence that the defendant Bloom has the reputation of being a law-abiding citizen. That is all the reputation he could have, even if he had belonged to another race and had a different religion. “Though good reputation of accused does not prove innocence, it carries weight where the proof is doubtful and circumstantial.” Gerke v. State, 139 N. W. 404 (151 Wis. 495).
It would seem that the trial court was not quite fair to him. Counsel for the defendant requested the following instruction : No. 10: “The jury are instructed that the witnesses Merle Bonner and Norman Bonner admit that they stole the goods which they testified were sold to Bloom. By their own testimony they are accomplices and their testimony should, for that reason, be acted upon with great care and caution,'and if, after a careful examination of their testimony, the jury are not satisfied that it is true, and do not believe that they can safely rely upon it, then the jury should return a verdict of not guilty.” These witnesses must have been of the most unsatisfactory character. It was the duty of the court to caution the jury against them. This the court did not do. The fact that it did not do so does not seem to be fair. The jury had the testimony of these witnesses before them. It went to them under the sanction of the court. The mere fact that the court -let it in compelled the jurors to consider it. It is easy to say that these witnesses were unworthy of belief, but how does the jury know that so long as no one tells them? When the court let this sort of evidence go before the jury, it *721stood sponser for the fact that it was to he considered. The jurors are not lawyers; they are simply jurymen.'
The defendant requested the giving of the following instruction : No. 5: “The jury are further instructed that, although the wife may have known or thought the goods at the time she bought them were stolen, this would not be sufficient to justify you in returning a verdict of guilty, though the defendant may have passively consented to what his wife had done without taking any active part in the matter.” This instruction, or one similar to it, should have been given. This is a case where there should be a discrimination between the defendant and his wife. Under the testimony for the defense, only the wife was there at the time the goods were brought into the store. Whatever she said and whatever.she did was not binding upon her husband. The jury should have been told that fact. It should be remembered that the jury were composed of men who are not lawyers. They were likely to receive the impression that the husband’s act acquiescing in the purchase made by his wife bound him, and, if it did, he would be criminally liable, although he was not present and had nothing to do with the transaction.
It is a familiar rule that the defendant is entitled to have his theory of the case go before the jury.
Merle Bonner is weak-minded. It is stated by counsel in some of the objections made that he had been in the Institution for Feeble-Minded. He swore that he was eighteen years old the 18th of October; that his parents were both dead; that he had not gone to school very much; that he could read a little, “not to amount to anything;” that he understood that the clerk wanted him “to swear against the Jew.” Undoubtedly there was an atmosphere there about the court that was unfriendly to the Jew, and, although this witness was only half-witted, he felt the pressure. He testified that they (his brother and himself) changed from a passenger car to a freight car as they were coming up to Falls City and before they got there, and that they did it to get these goods; that his brother suggested *722getting the goods. It will be remembered in this connection that Norman Bonner testified that Bloom told him to steal the goods. Of course, if Norman suggested stealing the goods before they arrived at Falls Oity, Norman swearing that Bloom told him to steal the goods is all a fiction. When they got to Falls Oity, he testified, the goods were thrown out along the side of the track down by the stockyards. He says this was at 4 or 5 o’clock in the morning.
Eaton testified that he went to Bloom’s store; that Aldrich said, “Bloom, get those goods, you got from these boys;” that then Bloom started around and commenced getting the overalls, and that his wife stepped up an'd said, “I’ll get them; you wasn’t here.” Eaton testified that the overalls were not covered up. “Q. Isn’t it a fact there was some kind of clothing, I don’t know what it was, over these overalls at the time and they were all taken out from that covering? A. No, sir; they wasn’t.”
L. L. Aldrich, the chief of police, testified that he went to the store along with Eaton, Johnson, and Merle Bonner; that “we were back there helping him, and Mrs. Bloom told him (her husband) to get out of the way when he went to get them.” She said that she put the goods there, an'd that he was not there when the goods were left at the store.
Mrs. Bloom testified that the overalls were brought to the store on Sunday, the 21st of July; that her husband was out of town that day; that he had gone out to the country about half past 8 or 9 o’clock in the morning, and he did not return until 7 or 8 that evening; that one of these boys asked her if they could leave the bundle, and she said, “yes;” that this bundle was tied with a rope, and that one could see that it was overalls. She says that she untied the rope and put the overalls on the shelf, and that she put the suitcase that had the cigars in it under the lower shelf; that she did not know how many pairs of overalls there were; that she never sold any of them; that to her knowledge her husband never sold any of them. She describes the overalls as a great big bundle; she says the overalls were all in one pile; she says she cut the rope that was around the bundle; she testifies that she untied the paclc *723and put the overalls up on the shelf because they were in her way; she put the cover on the overalls; that her husband had nothing to do with it. She testified that she got the suitcase when the men came in and asked for it. It will be seen from her testimony that she assumed the management of delivering the goods to the chief of police; that she Avas inclined to crowd her husband to one side on the theory that she knew Avhere the goods were, and that the package had been left with her.
The defendant testified that he first learned from his wife about the overalls and the suitcase being there; that he did not know about it until the Monday morning after they were brought there.
If the court had liberty to refuse this instruction, then it was at liberty to deny the defendant the privilege of being heard. I cannot sufficiently emphasize the fact that the jury are not composed of laAvyers, and that jurors are taught that it is their duty to receive from the judge what he characterizes as the law. When he lets the evidence come before them, the jury feel hound to consider it. If he does not give them some sort of cautionary instruction, they are almost sure to accept the evidence as true.
It is said in the majority opinion that “It is assigned that the court erred in refusing to give instruction No. 5 (requested), to the effect that, although the wife may have lcnoAvn the goods were stolen, this would not be sufficient to justify the jury in returning a verdict of guilty, although the defendant may have passively consented to what his wife had done AAdthout taking any part in the transaction. There was no evidence in the case to which such an instruction Avas applicable. No claim is made, and no one testified, that Mrs. Bloom ever purchased any goods. Instructions should have reference to the evidence in the case, and there was no error in this refusal.”
It is true that there was no direct testimony to the effect that Mrs. Bloom purchased the goods, but the goods were there in the store; because of the fact that they were there, it would be easy for the jury to jump to the conclusion that whether Bloom was there or not when the goods were *724brought into the store Avould make but little difference. The jury were likely to say: “Suppose Bloom’s Avife took these goods in, but Bloom let them stay there does not that make him guilty?” The trouble Avith that sort of reasoning would be that they would be holding Bloom liable for an .assumed criminal act of his wife. The majority opinion refuses or neglects to consider Bloom’s danger. As lawyers, the other members of this court knoAV that one person should not be held liable for the Avrong of another except in special cases and under special' circumstances, which do not apply in this case. But they know that because they are laAvyers, and because they have been trained by years of -experience to know that; but the gentlemen who sat as jurors did not have those years of experience, and they would be wholly unable to determine what the law Avas unless directed. The district court did not direct them. It left them in the dark and where they could jump onto Bloom as responsible for the act that his wife had not done, but Avhich they might assume that she did.
A’s wife, in A’s absence, receives stolen potatoes, knowing them to be stolen. The jury find that A afterwards adopted his wife’s receipt. This finding is not sufficient to sustain a verdict of guilty, as it is consistent with A’s having passively consented to what his wife had done Avithout taking any active part in the matter. Regina v. Dring, 1 Dears. & B. C. C. (Eng.) 329. Chief Justice Oockbum said: “The word ‘adopted’ may mean that the husband passively consented to what his Avife had done, without taking any active part in the matter. In that case we think it would not be right to say that he was guilty of receiving. True it may mean that he did take such active part, but Ave cannot put this rigid construction upon the word ‘adopt-. ed;rand it Avould be going too far to say, upon this finding of the jury, that the conviction can be supported.” The opinion was unanimous.
No instruction given by the court contained the idea set forth in this request. We should remember that the defendant is found guilty upon the theory of the prosecution that he knew that the goods had been stolen. ■ The danger *725is that the jury came to its conclusion that the property was stolen because the jurors thought that Mrs. Bloom may have believed that it was stolen. They may have further thought that it was the duty of the defendant Bloom to make some sort of objection to it, although they may have considered that he was not present when the goods were brought into the store. The jury were likely to conclude that the act of the wife was the act of the husband, and, though performed in his absence, that it made no difference. In the consideration of this peculiar case, it was the duty of the trial judge to protect the defendant from the effect of auy act of his wife. As I understand it, the majority opinion declines to look into the details of the case. The English case cited looks in and, acts. Unless the testimony of the Bonners is accepted as true, there is no testimony against Bloom except that the goods were found in his store. I am unable to find any testimony that corroborates the testimony of Norman and Merle Bonner, and they dispute each other all the time as to what happened and how it happened. The testimony of the Bonners tends to show that they brought the goods to the store on the 21st of July. That seems to be their testimony, and that is the testimony of Mrs. Bloom. The defendant Bloom says that he was not there, and that he did not purchase the- goods nor receive them, and four witnesses SAvear that on that Sunday he was out in the country all day. No one disputes the fact that he was out in the country all day on that Sunday except the Bonners.
The writer of the majority opinion may not believe in the Bonners generally, and this jury may have had the same impression; but if left at liberty to think the husband adopted the act of the wife, and so was trilling to keep the goods, they may have thought they had the right to find the husband guilty, and that he properly Avas guilty. For this reason, there should have been an instruction as requested. In any event, there should be a new trial for this reason alone.
*726The questions asked the character witness on cross-examination were prejudicial. People v. Huff, 173 Mich. 620; Elliott v. State, 34 Neb. 48.