(dissenting) : I agree that the instruction as to the effect of possession of the stolen property or knowledge of its place of concealment was erroneous, but I think in this case it was not prejudicial. The defendant took the stand and made a statement undertaking to explain how he came to know where the stolen suit case was hidden. It is practically certain under the entire record, that he either stole the property himself, or that, as he claimed, his roommate stole it and told him about it. A case may readily be imagined where it would be the duty of the jury to consider whether the defendant might not be innocent upon some theory other than that which he had himself advanced, even although it should be inconsistent with his testimony. But here there is nothing to suggest any reasonable likelihood of such a situation, although it is of course possible. Beyond substantial doubt, if the story told by the defendant was false he was guilty of the offense charged. The jury were told in substance that the defendant was not required to prove the truth of his story, but if by reason of it they should entertain a reasonable doubt of his guilt they must acquit. While not as explicit as might be desired, this amounted to an instruction that if they believed the defendant’s explanation, or entertained a reasonable doubt of its falsity, they could not convict. In this situation I do not think the verdict could have been- affected by the erroneous instruction. It is so clear that if the defendant’s story was untrue he was guilty, that no prejudice resulted from the trial court saying so to the *136jury, although strictly the matter was one for their own determination. (Roberts v. State, 11 Wyo. 66, 86, 70 Pac. 803.)
Burch, J., concurs in this dissent.