By the Court,
Kingman, C. J.The appellant was charged with larceny in Shawnee county; and, having been convicted, appeals to this court, alleging, as errors in this trial, the admission of improper testimony, the giving and refusing instructions, and the overruling of a motion for a new trial, because the verdict was not sustained foy the evidence. The information was for stealing a set of double harness from John W. Surfis, of the value of fifty dollars. The testimony shows that the harness was stolen from Surfis, early in October, 1867, and was found, late in that month, in a haystack'on the north side of the river, in Shawnee county. The testimony shows further, that the appellant, with his two sons, son-in-law, wife, daughter and daughter-in-law, and some children, *306thirteen in all, squatted on the place sometime in August, 1867, occupying a cabin about twelve by fourteen feet, with a garret without stairs, most of them sleeping in wagon-beds near the house. The appellant was arrested, with his two sons and son-in-law, at -the same time Surfis’s harness was found. At that time there was, about fifteen rods from the house, a stable with haystacks on the north and south sides, so constructed as nearly to surround the stable. About one-half mile from the cabin was another haystack. The stacks were all so constructed that there was ready though hidden access to the interior of them, which was hollow. The cabin was half to three-fourths of a mile from any other habitation. Surfis’s harness was found concealed in the haystack north of the stable; and on the day of arrest, and immediately afterwards, property was found concealed in each of the haystacks, under the manger of the stable, in the garret, in a. wagon-bed, in the brush a short way off, and apparently wherever a hiding place could be devised. Most of this property was proved to have been stolen from citizens of the county. It was a curiously varied and motley assortment. To the introduction of all the evidence relating to property other than that charged in the information, the appellant objected. The testimony is voluminous. Its general character and tendency is stated above sufficiently to enable us to understand the objection.
The counsel for appellant insists that the evidence, improperly admitted, tended to prove a number of other distant offenses, committed by somebody, and that the State thereby attempted to charge the defendant with the larceny of the goods described in the information by incompetent testimony, because there *307was no connection whatever between the larceny ■charged and the several other larcenies proved. The ■defendant’s counsel cite Roseoe’s Criminal Evidence, and numerous other authorities, as laying down this rule: “ It is a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue. In criminal proceedings, it has been observed that the necessity is stronger, if possible, that in civil cases, of strictly enforcing the rule; for while a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he. can be expected to come prepared to answer. ” We do not think the case at bar comes, necessarily, within this rule, as we shall show hereafter; but the same author, on the same page (81), makes this modification, which is also found in all of the other treatises we have examined: “But where the evidence is referable to the point in issue, it will not be inadmissible, although it may incidentally apply to another person or to another thing, not included in the-transaction in question, and with regard to whom or do which it is inadmissible.”
In reference to these two rules, Mr. Wharton says : “It is important not to confound the principles on which these two classes of cases rest. On the one hand, it is admissible to produce evidence of a distinct crime, to prove a scienter, or to make out the res gesta, or to exhibit a chain of circumstantial evidence, in respect to the act charged. On the other hand, it is necessary strictly to limit the evidence to the exceptions, and to exclude it when it does not legitimately fall within their scope.” Wharton's C'rim. L., §650.
*308The testimony objected to was necessary to make out the chain of circumstantial evidence in respect to the act charged. (Possession of the stolen property was shown to be. in or among the four men arrested. Clearly, this was not enough to convict the appellant. Possession of stolen property, to authorize a conviction on that alone, must be recently after the theft —must be exclusive and unexplained. The State offered, as corroborating circumstances, the evidence to show the guilt of the appellant, as well as the others accused. They all came and Squatted on the place together, all assisted in cutting the hay and forming the haystacks. Their relationship, their means of life, the variety of articles found secreted in various places on the premises, all tended to show a combination of effort on the part of all four to accomplish this purpose, and create in the mind a conclusive certainty that the possession of the property charged in the information could not have been innocent, and that the guilt was general. One reason would be the general knowledge men have that such an assortment would not be innocently gathered and secured,' as that was in this case; and that general conclusion was only made a certainty by the proof that almost all of this property was identified as the property of many different persons — gleaned from a wide field. These were facts all throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for. It is one of the recognized marks of a guilty possession, that “other stolen property or pick-lock keys,” or other instruments of crime, be found in the possession of the accused. Wills on Crim. Ev., 74.
*309The testimony all showed a guilty knowledge and combination between the appellant and the others, to carry on a general stealing business, .and was admissible to prove the appellant an accessory before the fact— counseling, aiding and abetting the others in the felonies, if not himself the actual perpetrator of the act charged.
As accessory before the fact, he was equally guilty under our statute, and might be found so on this information. Comp. L., 252, §101; 341, §276;
The testimony was competent, not to prove another offense, but as circumstances to show the prisoner’s guilt and guilty knowledge, in this case.
Another alleged error in admitting testimony is this: A short time before the trial, three of the persons escaped. Tracy, who was on guard at the time of the escape. was introduced for the defense. His testimony tended to show that the appellant had refused to flee at the time the other prisoners escaped, and that he had the same facilities for escaping that'the others had. On cross-examination, he testified that he' did not -recollect having told Whiting, on the night' of their escape, that appellant was sick and could not get out. Subsequently, Whiting was introduced as a witness by the State, and, against objection, testified that Tracy had, on that occasion, told him that defendant was sick and could not run.
It is contended that as Tracy had not denied making such statement to Whiting, the testimony of the latter was improperly admitted. We think otherwise. Tracy’ s testimony was intended to raise an inference of conscious innocence, by showing that the accused would not escape when he had an opportunity, and was positive that he had the same facilities that the *310others had. This would not be true if he were sick; therefore the testimony was relevant and admissible.
Had Tracy answered, “Yes,” that would have been an end to the matter, for the state could only have proved what was admitted; had he answered, “No,” then the counsel admit that Whiting’s testimony was proper. In order to lay the foundation for introducing proof, the witness must be asked whether he ever said so'and so, with particularity as to time and place, and occasion.
The object of this question is to give the witness an opportunity to explain, before he is impeached; this is the only reason he is asked the question. If he answer affirmatively, the necessity for further testimony is superseded. If he says he does not recollect, then you may give evidence on the other side, to prove that he did say what is imputed to him; and to that extent, the force of his testimony is weakened. If the rule were not so, you could never contradict a witness who said he could not remember. 2 Phil. Ev., 435; 1 Greenl. Ev., 606, note.
The case referred to in 5 Ind., is not very satisfactory. The facts are not fully stated, nor is any reason given or authority advanced for the decision. It was, perhaps, based upon the peculiar phraseology of the bill of exceptions. At any rate, the rule and the reason are both against that decision, as the counsel understand it.
The next point in error is, in instructions refused and given. The instruction refused, referred to, is in the exact language of the first part of § 33, vol. 3, of Green-leaf on Evidence, and is to the effect that to raise a presumption of guilt from the possession of stolen property, or the fruits of crime, they must be in the *311exclusive possession of the accused. That if others, as well as the prisoner, had access, it would not be right to permit such presumption on proof of possession alone. This is, in our opinion, good law. But the appellant has no right to complain of its refusal because the court instead instructed the jury on this point, that the law does not infer guilt from the exclusive possession of the articles alleged to have been recently stolen, but that that fact must, with others, go to the jury, under the rules governing circumstantial evidence; but before the jury are authorized to presume the fact of guilt, from the possession of said articles alleged to have been stolen, they should be satisfied from the evidence that the said articles were recently stolen, and that the defendant was found either in joint or exclusive possession thereof. This instruction given was quite as favorable to the accused as the one refused, and was more applicable to the case, because the State had not, by any means, rested the case on possession of the stolen property alone, but had added a long array of- corroborative testimony.
If the prosecution rests the case on possession of the fruits of crime alone, then the possession should be absolute and exclusive, when one alone is charged with the offense; but when others are charged with the same offense, and other proof comes in, as in this case, proof of a joint possession may be sufficient. It is but one among the many items of testimony, and it was proper to refuse an instruction, although it was law, that was not applicable to the facts proved, and substitute one that did apply. The jury were substantially told that possession was a fact, like any other fact to'be weighed by the jury, and in this case, that was a proper instruction.
*312Another cause of error is that the jury were allowed to separate during the progress of the trial, and before the cause was submitted to them. As the law authorizes such separation, upon proper admonition, we cannot interfere. It is not like the case in 1 Kans., 351-4. (Madden v. The State.) There the separation was after the cause was submitted, and the separation prohibited by law.
We are of opinion that the verdict was abundantly sustained by the evidence, as has been indicated in previous portions of this opinion.
We find no error in the record that will justify us in disturbing the judgment of the court below.
All the justices concurring.