I. I concur in the result reached in the opinion of HIGBEE, J., and also concur in the separate concurring opinions of BLAIR, C.J., and GRAVES, J. For many years this court has adhered to the rule that unexplained possession of recently stolen property raises a presumption of law that the possessor is the thief. In so doing we have been out of harmony with thePresumption: overwhelming weight of authority as found inStare Decisis. *Page 159 the well-reasoned decisions of practically all of the other states. The fact that we have followed the rule for so many years and that such rule has become thoroughly embedded in the decisions of the court during all those years is in my judgment no reason why we should continue to follow an unsound rule and one that has doubtless permitted injustice to be done in some cases.
II. An instruction telling the jury that one in possession of property recently after it is stolen is presumed to be the thief thereof, unless he satisfactorily explains such possession, is also improper, for the reason that it is a comment on the evidence. Since we have abandoned the rule thatPresumption: unexplained possession of recently stolen propertyComment on raises a presumption of law that the possessor isEvidence. the thief, the trial court should not give any instruction whatever in relation to the conclusions or inferences which may be drawn by the jury from the fact of possession of recently stolen property. The fact of such possession should be left to the argument of counsel in connection with other facts shown by the evidence and such fact should not be singled out by the court or unduly commented upon in the instructions.
III. I am unable to concur in paragraph one of the opinion of HIGBEE, J., wherein he condemns Instruction 1 in the instant case, on the ground that it assumes that the property was stolen. The jury were first required to find that the property was stolen, and, having once been required to find thatAssumption fact, the reference to the property thereafter in theof Fact. instruction as stolen property did not amount to the assumption that the property was stolen. [State v. Richardson, 228 S.W. 789; State v. Bickel, 177 S.W. 310.] In 16 Corpus Juris, 950, it is said: "Although part of a charge may be open to the objection that it assumes a fact in issue, this error will be cured when the charge taken as a whole overcomes the objection." *Page 160
IV. I think the judgment in this case should be reversed and remanded for the additional reason that the trial court failed to instruct upon circumstantial evidence and that the point is sufficiently saved by being called to the attention of the trial court for the first time in appellant's motionCircumstantial for new trial, as pointed out in the separateEvidence. concurring opinion of GRAVES, J., in which I fully concur. James T. Blair, C.J., concurs in Paragraph II herein.