State v. Knowles

McCoww, J.,

dissenting.

In refusing to consider plain error in instruction No. 13, the majority opinion goes further than our cases have gone before. It refuses to acknowledge that an instruction is erroneous if it allows possession of recently stolen property, standing alone, to be treated by inference as prima facie evidence of guilt of a defendant charged with receiving stolen property. The opinion reaches that result by saying that the jury must have discounted the defendant’s uncontradicted explanation. This merely emphasizes the fact that the instruction permitted the jury to find the defendant guilty of receiving stolen property by inference from the bare fact that he was found in possession of the stolen goods. The result is that the defendant has the burden of proving lack of guilty knowledge and the State is relieved of its obligation to prove that the defendant knew the property was stolen.

The Pennsylvania Supreme Court recently overruled a long line of its cases which permitted a jury to infer a defendant’s guilt of possession of stolen goods from his recent unexplained possession of them. See Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970). Cited as ground for that overruling were Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57; and Turner v. United States, 396 U. S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610.

The possession of recently stolen property, when coupled with a lack of satisfactory explanation, or a false explanation or other incriminating circumstances or conduct, is sufficient to support a verdict of guilty. See, State v. Solano, 181 Neb. 716, 150 N. W. 2d 585; State v. Perez, 182 Neb. 680, 157 N. W. 2d 162; State v. Henry, 174 Neb. 432, 118 N. W. 2d 335; State v. Oltjenbruns, 187 Neb. 694, 193 N. W. 2d 744. This court has been and should remain committed to the rule that un*285explained, possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge, but standing alone it will not support an inference of guilty knowledge nor authorize conviction. That is the modern rule in the great majority of jurisdictions. It should be reaffirmed here.