— Defendant assigns as error the action of the court in overruling his motion to require the state to make an election of the act that the state claimed constituted “the act of larceny or felonious taking — whether the time the car was turned over to Dooley near Hilgard, or the time it was taken from Hilton’s Garage, or at the time it was sold by Dooley to Teeters.” Defendant’s motion was made after the statement of the prosecuting attorney to the jury had been made and before any testimony was taken, and was based upon the rule that in criminal actions the prosecution is compelled and required to prove some particular act constituting the crime and rely upon the same for a conviction: State v. Eggleston, 45 Or. 346, 358 (77 Pac. 738); State v. Coss, 53 Or. 462, 467 (101 Pac. 193); State v. Hardin, 63 Or. 305, 308 (127 Pac. 789).
1. Whether in any case the court should compel the prosecution to elect the transaction upon which it will rely for conviction is largely a matter of judicial discretion. The court, upon seasonable ap*180plication, should compel an election when it appears that if the application is denied, the defendant will be prejudiced or he will be prevented from properly making his defense: 1 Bishop’s New Criminal Procedure, §§ 454, 459, 460, 462; State v. Hardin, 63 Or. 305, 308 (127 Pac. 789).
2. Defendant’s motion to elect was made before • any evidence had been introduced in the ease, and so far as appeared from the opening statement of the attorney for the state, the prosecution intended to rely upon the taking of the car from Hilton’s Garage as the transaction constituting the larceny charged in the indictment. It also appeared that the other matters referred to in the statement were collateral thereto, and that those transpiring before the car was taken from Hilton’s Garage would be depended upon to show the nonconsent' of the owner of the car to the taking, while those transpiring thereafter would be relied upon in part to show the relation of the ' defendant to Dooley. The situation presented did not require the court to compel the state to elect, and no error was committed in denying defendant’s motion.
3-6. Defendant requested, and the court refused, to give the following instruction:
“I instruct you that if you find from the evidence that the said George Robertson was the sole owner of the said automobile, and that he intrusted and delivered to the said C. E. Dooley the said automobile-to be safely kept by him, and that said C. E. Dooley retained the possession thereof, and placed the same in the custody of a garage claiming the right to possession, paying the garage fees, and that the same never passed from his possession until he delivered the same to the defendant T. J. Keelen to sell, and that the defendant T. J. Keelen sold the same and gave the price to the defendant O. E. Dooley, then I *181instruct yon that under the indictment in this cause there was no trespass, and it will be your duty to return a verdict of not guilty.”
By the foregoing request and by requests made to direct the jury to acquit, defendant pressed upon the court the contention that Dooley was a bailee of the automobile within the meaning of the criminal statutes, and as the evidence showed the absence of a trespass by Dooley in obtaining possession of the car, the offense of Dooley, if any, was larceny by bailee, and not larceny; and that therefore the proof would not sustain the charge against the defendant of conspiring with Dooley in the commission of the offense of larceny. This contention is predicated upon the established rule that to prove one offense will not support a conviction upon an indictment charging a different offense. Defendant contends that the refusal of the court to direct the jury as requested was error.
The evidence, the substance of which is recited in the foregoing statement, discloses that Dooley, jointly indicted with defendant, was given the bare charge or custody of the automobile by the owner, with the understanding that Dooley would at once return the same to the garage at La Grande, where Robertson had been keeping the same.
The statute defining the crime of larceny by bailee was not intended to include that which is not larceny at common law: 1 Wharton’s Criminal Law (10 ed.), § 1027; State v. Muck You, 20 Or. 215 (25 Pac. 355). One. having the bare charge or custody of personal property, such as an agent or servant, who fraudulently converted such property to his own use was guilty of larceny at common law.
*182“It is a clear maxim of the common law that where one has only the bare charge or custody of the goods of another, the legal possession remains in the owner, and such person may be guilty of trespass and larceny in fraudulently converting the same to his own use.” 17 R. C. L. 43.
All the authorities support the foregoing text. See 2 Bishop’s Criminal Law, §§ 823, 824; 2 Wharton’s Criminal Law (11 ed.), secs. 1195, 1196; 20 Corpus Juris, 418, note 76; Holbrook v. State, 107 Ala. 154, (18 South. 109, 54 Am. St. Rep. 65); Colip v. State, 153 Ind. 584 (55 N. W. 739, 74 Am. St. Rep. 322); Dignowitty v. State, 17 Tex. 521 (67 Am. Dec. 670); Justices v. People, 90 N. Y. 12 (43 Am. Rep. 135); State v. Anderson, 25 Minn. 66 (33 Am. Rep. 455); Eggleston v. State, 129 Ala. 80 (30 South. 582, 87 Am. St. Rep. 31, 35, and note); Williams v. State, 165 Ind. 472, (75 N. E. 875, 2 L. R. A. (N. S.) 248); Chanock v. United States, 5 App. D. C. 54 (267 Fed. 612, 11 A. L. R. 799).
It is sometimes difficult to distinguish between a possession incident to a bailment and a bare charge or custody of property, and in a few jurisdictions the distinction between custody and possession, as determining the offense, is not recognized: 9 R. C. L. 1267; 20 Corpus Juris, 419. However, the above citations disclose that in most jurisdictions the distinction is recognized and preserved. In the case of Shipp v. Patten, 123 Ky. 65 (93 S. W. 1033), the court quoted with approval from 1 Eobertson’s Ky. Criminal Law, Section 420, as follows:
“There is a difference between the terms ‘custody’ and ‘possession.’ Possession is the present right and power to control a thing. A person has the custody of property, as distinguished from the possession, where he merely has the care and charge of it for one who retains the right to control it, and who *183therefore retains constructive possession. Where goods are delivered by the master to his servant or other agent, he parts with the custody only, and not the possession; he has constructive possession. A servant, therefore, or other agent, who has merely the care and custody of his master’s goods, is guilty of larceny if he converts them to his own use without his master’s consent.”
To the same effect, see Warmoth v. Commonwealth, 81 Ky. 133, 135; People v. Burr, 41 How. (N. Y.) 293; Emmerson v. State, 33 Tex. Crim. Rep. 89 (25 S. W. 289, 290).
This court in Outcault Advertising Co. v. Brooks, 82 Or. 434 (158 Pac. 517, 161 Pac. 961), had under consideration the essentials of a bailment, and in the opinion in that case Mr. Chief Justice Moore quoted with approval from Elliott on .Contracts, Section 3073, as follows:
“The delivery must be such in every case as will give the bailee absolute and complete control of the property bailed.”
Dooley’s authority over the automobile was restricted to the narrow limits of driving the car the short distance from Hilgard to La Grande and placing the same in the garage, and in no sense extended to control of or ownership or right therein adverse to Robertson, and his subsequent conversion of the car to his own use constituted larceny.
If it be conceded that under any aspect of the evidence, Dooley was a bailee of the automobile, the bailment was terminated when the purpose of Dooley’s custody of the car was accomplished by delivery thereof to Hilton’s Garage, or at the latest, when M. J. Goss, at the direction of Robertson, had the car placed in “dead storage” in Hilton’s Garage: State v. Dooley (just decided).
*184The requested instruction and defendant’s requests that the court direct the jury to acquit the defendant wholly ignore the undisputed evidence that the bailment, if one ever existed, was terminated before Dooley took the car from Hilton’s Garage to defendant’s place of business, and the court did not err in refusing to direct the jury as requested by defendant.
7. Defendant urged as an additional reason for granting his motion to direct the jury to acquit him that the evidence failed to show that defendant was associated with Dooley in the larceny of the car. We think there was sufficient evidence to fake the case to the jury upon this question, and no error was committed in refusing defendant’s motion.
Defendant also claims that the court erred in its instruction .to the jury wherein they were directed in effect that the act or declaration of one conspirator, while engaged in or pursuant to the common- object or design, is the act or declaration of all. The court gave several instructions upon this point, and taken together they correctly state the law.
8. Defendant next complains that the court erred in giving the following instruction:
“I instruct you that if you believe from the evidence in this case, beyond a reasonable doubt, that the Ford automobile described in the indictment, was stolen from George Robertson, and that George Robertson was the owner thereof, and that shortly thereafter, the same was found in the possession of the defendant, and defendant has failed to explain how he obtained such possession, his failure to make such explanation may be considered by you as a circumstance tending to show defendant’s guilt, and given such weight as you may deem proper in connection with the other evidence in the case, I instruct you, however, that such explanation of the defendant is *185sufficient, if it raises a reasonable doubt in the minds of the jury as to the guilt of the defendant.”
The defendant contends that the above instruction, upon which error is assigned, was not applicable in defendant’s case, for the reason that under the testimony his possession or custody of the automobile ceased to be evidence against him, and did not require him to make an explanation, and that therefore the direction given by the court,- without any basis in the testimony, in effect, told the jury that his possession was a suspicious circumstance that enmeshed him in a situation from which he must extricate himself.
9. In the trial upon a charge of larceny, evidence that recently stolen property was found in the possession of the defendant is circumstantial evidence to be considered by the jury with the other facts in evidence in the case in determining whether defendant is the person who stole the property described in the indictment : 2 Bishop’s New Criminal Procedure, § 739. The jury, though they are not bound to do so, may infer from such evidence, considered with all the other facts in evidence in the case, that the accused is the person who stole the property, and whether the jury will in a particular case draw such an inference from the evidence depends upon the character of the property, the nature of the possession and its proximity in time with the theft: State v. Pomeroy, 30 Or. 16, 25 (46 Pac. 797).
It is the exclusive province of the jury to say by their verdict what inference, or whether any inference at all, shall be drawn from the fact of recent possession of stolen property: State v. Sally, 41 Or. 366 (70 Pac. 396).
10. It is the recent possession of stolen property, and not a lame explanation, or the absence of expía*186nation, upon which the inference mentioned may be based: State v. Brinkley, 55 Or. 134, 138 (104 Pac. 893, 105 Pac. 708). The office of the explanation is to rebut the inference that arises, or may arise, from the fact of possession: 17 R. C. L. 74.
11. The burden of proving the defendant guilty, beyond a reasonable doubt, continues with the prosecution throughout the trial. The state in a larceny case cannot be aided, except negatively, in maintaining that burden, nor relieved therefrom by the failure of one accused to make an explanation of the possession of stolen property, nor by any explanation made, however unsatisfactory: State v. Hutchison, 121 Minn. 405 (141 N. W. 483).
The absence of reasonable explanation in such a case may aid the unfavorable inference to be drawn from recent possession of stolen property, just as and only as, any evidence is aided or strengthened by the failure of a party to produce evidence to rebut it, when apparently it is in his power to do so.
The time and the circumstances under which both Dooley and defendant came into possession of the property and the facts of and connected with such possession were undisputed and were clearly established by direct evidence given by eye-witnesses, and nothing was left to inference in respect thereto: State v. Warden, 94 Mo. 648 (8 S. W. 233); State v. Spencer, 4 Penne. (Del.) 92 (53 Atl. 337).
The direct evidence traced the possession to defendant and at the same time it clearly explained that he was not present when the car was taken, and that he did not actually take the same. The direct evidence further showed without contradiction that- Dooley alone took the car from the place where it was kept and removed it to defendant’s place of business, *187where it was offered for sale, and later sold by defendant without any claim or assertion of ownership by him.
In the light of the evidence, the inference, if any, to be drawn from the facts surrounding defendant’s possession, including his explanations in respect thereto, related to the question of whether defendant was an accomplice of Dooley; the jury were authorized to consider those facts, together with all other facts in evidence in determining whether defendant conspired with Dooley to steal the car, or aided and abetted him in so doing, provided of course they were first satisfied from the evidence, beyond a reasonable doubt, that Dooley did steal the car, as charged.
The instruction (if it was proper to give any at all upon that matter) should have confined the jury in their consideration of the evidence of defendant’s possession of the automobile, and his explanation concerning the same, to the determination of whether defendant was an accomplice of Dooley, as indicated; but instead the court broadly directed the jury that such evidence might be considered by them as a circumstance tending to show defendant’s guilt; thereby authorizing the jury to drop consideration of the conflicting evidence of ownership of the property, and of defendant’s connection with Dooley in the larceny thereof, and to rest a verdict of guilty on the confessed possession unsatisfactorily explained: State v. Humason, 5 Wash. 499 (32 Pac. 111). This was prejudicial error, for which the judgment of the Circuit Court should be reversed.
We have examined the record in connection with the other errors assigned and relied upon by defendant, and conclude that no error was committed by the court in respect thereto.
*188The judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court for a new. trial. Reversed and Remanded.