I am unable to concur in the foregoing decision.
The court instructed the jury as follows: "The Court instructs you further, Gentlemen, that if you do not believe from the evidence that the said horse was taken, led or driven away from the County of De Baca, and the said owner of said horse deprived his possession in the County of De Baca, as alleged in the information, still, the Court instructs you that if you believe from the evidence beyond a reasonable doubt that the Defendant Cliff Miller, at some other county in the State of New Mexico, on the 21st day of June, 1935, or at some other time within three years prior to the date of the filing of the information herein in this court, to-wit, on the 12th day of October, 1936, did, knowingly and intentionally, deprive the said owner, W.S. Parker, without his consent, of the immediate possession thereof, and after so taking, leading and driving away of said horse, did immediately bring the same into the County of De Baca, in the State of *Page 622 New Mexico, and that the taking, leading and driving away of said horse from the place where it had been left by the owner, and the bringing of the same into the County of De Baca was one continuous act and transaction, and with the continuous intent to deprive the owner of the immediate possession thereof, then the Court instructs you that you may find the Defendant Cliff Miller guilty in manner and form as charged in the information."
The giving of this instruction indicates a doubt in the court's mind that the evidence showed that the horse was taken, led, or driven away from the county of De Baca.
There is no evidence to connect the defendant with the taking of the horse from the place where it had been left by the owner in Guadalupe county in the summer of 1935; there is no evidence that the defendant brought the same into De Baca county; the person next seen with the horse after the owner lost it in Guadalupe county was John Riley, who had it in his possession as a stray horse for weeks before any connection of defendant is shown with it. It appears that the possession of the horse by John Riley intervened between the owner's immediate possession and any connection by defendant with it. John Riley apparently rode the horse away from De Baca county into Roosevelt county and defendant became possessed thereof in Roosevelt county. How then can it be said that defendant deprived the owner, Parker, "of the immediate possession thereof"?
The guilty connection of defendant with the horse in Roosevelt county, which was substantially a year later, rests solely upon his unexplained possession of it there and does not raise a presumption that the horse was stolen, much less did it raise a presumption that defendant had stolen it from Parker, the owner, in Guadalupe county, or that he had at some time or other taken it into De Baca county or had taken it therefrom.
Particularly is such presumption unreliable since the jury were not instructed as to the probative force of the unexplained possession of stolen property, if it had been stolen, and as to the necessary elements of the recency of the possession as related to the time of the theft and other elements necessary to be shown to exist before such presumption may be said to arise. It is true the appellant did not request such an instruction, but it appears to me that where the State must rely solely, as in the case at bar, upon circumstantial evidence for conviction, the court should instruct as to the qualities of effective circumstantial evidence whether requested to do so or not. See Territory v. Lermo, 8 N.M. 566, 46 P. 16, cited by the Wyoming Supreme Court in Gardner v. State, 27 Wyo. 316, 196 P. 750, 15 A.L.R. 1040, where the court decided: "The court should instruct on law of circumstantial evidence where such evidence is alone relied on for conviction, although the instruction requested by accused is erroneous, and he requests no other instruction on the subject, and takes no exception *Page 623 to the court's failure to give one where the statute requires the court to charge the jury."
In the course of the opinion the Wyoming court cited many cases to support that view, and quoted from a note in 97 Am. St.Rep. p. 790, as follows: "In order to secure justice, it is the duty of the trial judge, even without request, to instruct the jury as to this kind of evidence, where the case is based solely thereon. * * * Territory v. Lermo, 8 N.M. 566, 46 P. 16. * * *"
It would be putting too heavy a burden on the defendant to require him to ask the court to instruct the jury of the existence of a presumption available to the prosecution arising from the evidence in order to demand that the cautionary elements usually accompanying such instruction should be included in order to make the presumption effective. In other words, the presumption is one which has been formulated out of experience for use in convicting those charged with theft and is a part of the State's case. Why should the accused be required to help the prosecutor make a case against him in order to insist that the case be not improperly made? In State v. Diaz, 36 N.M. 284, 286,13 P.2d 883, the conclusion was reached that there are exceptions to the rule that nondirection is no cause for reversal unless the accused had invoked such nondirection as an error at the trial. In that case it is suggested that there are situations in which it would embarrass the defendant and demand too much of him to require that he point out to the court the only legal principles and facts upon which the jury can convict him. Under the principles announced in State v. Reed, 39 N.M. 44,39 P.2d 1005, 102 A.L.R. 995, it is extremely doubtful if the jury had a right to take into consideration the presumption or inference of guilt arising from possession of stolen property in the absence of a guiding instruction from the court as to the legal effect of such possession.
That the unexplained possession by one of property belonging to another does not raise the presumption that a larceny has been committed, and that the possessor is a thief, and that additional evidence is necessary to establish the corpus delicti is established law. See State v. White, 37 N.M. 121, 19 P.2d 192.
In my opinion, the administration of justice should require the reversal of the judgment. I therefore dissent. *Page 624