may convict. Any explanation which a party found in possession of stolen property gives, at the time, as to the nature and extent of his possession, and how he came by it, is evidence, either for or against him.' He may explain his possession when charged with the theft, although not then in possession. The explanation is admissible if given on the first occasion presented, although a month after he had parted with the possession. Where one, called on to explain his possession, asks a person present to speak for him, the explanation is entitled to the same weight as though made by himself. It is error to refuse to permit defendant to introduce in evidence the explanation given by him of his possession at the time of his arrest. Where the State relies upon the defendant's possession as an inculpatory fact, any explanation given by the defendant at the time he was found in possession, respecting his possession, is admissible; and, if it be reasonable and exculpatory, the State is charged with the onus of proving the falsity of such explanation before such possession can of itself be held criminative of the accused. A conviction based wholly on defendant's possession of property recently stolen will be set aside where defendant's reasonable explanation was not shown to be false. And the State does not disprove his explanation merely by showing that a witness 1 Unger v, State, 42 Miss. 642; 1870. Knickerbocker v. People, 43 N. Y. 177; State v. Turner, 65 N. C. 592. Compare Commonwealth v. Bell, 102 Mass. 163. Shackleford v. State, 2 Tex. App. 385. 8 Taylor v. State, 15 Tex. App. 356; Anderson v. State, 11 Tex. App. 576. Lewis v. State, 17 Tex. App. 140; Heskew v. State, Id. 161. Windham v. State, 19 Tex. App. 413. • Castellow v. State, 15 Tex. App. 551. 7 Sitterlee v. State, 13 Tex. App. 587; Irvine v. State, Id. 499; Harris v. State, 15 Tex. App. 411; Ross v. State, 16 Tex. App. 554; Shultz v. State, 22 Tex. App. 16; Vaughn v. State, 21 Tex. App. 573; Irvine v. State, 13 Tex. App. 499; Johnson v. State, 12 Tex. App. 385. It was in proof that the defendant, when found in possession, claimed possession by virtue of the consent of the owners' agent. Held, that it being shown that the agent was accessible at the time of the trial, and want of his consent not being in proof, he should have been produced by the State to negative, if he could, the statement of the accused.-Powell v. State, 11 Tex. App. 401. 8 York v. State, 17 Tex. App. 441; Schultz v. State, 20 Tex. App. 315; Brothers v. State, 22 Tex. App. 447; Clark v. State, Id. 599. who gave additional testimony in support of it had previously made inconsistent statements.' § 163. Alabama.-The possession of stolen goods recently after the larceny, if unexplained, is a criminating fact, from which the jury may infer the defendant's complicity in the larceny, and the question of its sufficiency being for their determination alone, the court may refuse to instruct them that such unexplained recent possession, without other circumstances tending to show felonious intent, does not amount to proof beyond a reasonable doubt of a larceny committed by the defendant. It is not indispensably necessary to establish the corpus delicti in larceny, where there is no direct proof of the felonious taking of goods found in the recent and unexplained possession of defendants, and forming part of a stock of merchandise which might have been disposed of in due course of business by the proprietor of the store or any one of his several clerks, that all those having authority to dispose of the goods should be called and testify, severally, that they had not disposed of them.' But where the only evidence was the testimony of the owner of the goods that he missed them from the store where they were the previous day, and that such goods were found in the trunk of defendant, to whom some of them had been sold by a clerk in the store, the court should have directed a verdict of not guilty. So, defendant cannot be convicted of stealing cotton merely on evidence that it was brought to his house and that he started to market with it.' § 164. Arkansas.-Possession of stolen property is a fact from which the possessor's complicity in the larceny may be 1 Loving v. State, 18 Tex. App. 459. 2 Underwood v. State, 72 Ala. 220. Roberts v. State, 61 Ala. 401. 4 Green v. State, 68 Ala. 539. Hill v. State, 78 Ala. 1. On a trial for larceny, the evidence tended to show that certain packages of seeds were consigned to one C.; that at the place of destination the car containing the packages was broken open before being unloaded; that the packages were missing; and that packages corresponding in number and description were subsequently found in defendant's possession. Held, that the evidence authorized a conviction of the larceny of the packages.-Shepherd v. State, (Ala.) 10 So. Rep. 663. inferred; but possession alone is not sufficient to sustain a conviction. It must appear that the property was recently stolen; the possession must be unexplained, and in some form involve an assertion of property in the possessor.1 6 § 165. California.-A person cannot be convicted of larceny upon mere proof of possession of the stolen property." It is therefore error in the court to instruct the jury that such possession casts the burden of proof upon the defendant.' And the rule is not changed by the absence of proof of good character. But proof of possession together with proof of other circumstances indicative of guilt, would make a prima facie case against the defendant, and thereupon the burden of proof would be shifted to the defendant. There must be some other evidence in the case tending, with this fact of possession, to establish guilt. Thus, evidence is properly given tending to prove that other horses disappeared from the same neighborhood at the same time as the mare and colt, with the larceny of which the defendant was charged, and were found, with the mare and colt, in his possession.' Whether the possession is strong evidence or only slight evidence tending to show guilt, is a matter for the jury to pass upon, and not for the court to determine. To justify the inference of guilt from possession it must appear that the possession was personal. The bare fact that stolen hides were found in the defendant's barn, which was open to all, affords no presumption of his guilt, and until his declaration of ignorance is shown to be false, he is not bound to explain how they came there.' Where money is stolen, proof that a part of it on the following day was found on the person of the accused, is sufficient corrobo 1 Shepherd v. State, 44 Ark. 39; Boykin v. State, 34 Ark. 443. 2 People v. Chambers, 18 Cal. 382; People v. Swinford, 57 Cal. 86. 3 People v. Ah Ki, 20 Cal. 177. 5 People v. Antonio, 27 Cal. 404; People v. Kelly, 28 Cal. 423; People v. Gill, 45 Cal. 285; People v. Velarde, 59 Cal. 457. People v. Cline, 83 Cal. 374; People v. Brown, 48 Cal. 253. 'People v. Lopez, 59 Cal. 362. People v. Titherington, 59 Cal. 598. rating evidence to sustain a conviction on the testimony of an accomplice.' So are the facts that on the morning after the larceny of a horse, the animal was found in the defendant's possession under circumstances which were suspicious, and that he immediately removed the horse to another place, and gave an assumed name. And if the money stolen is of a kind rarely seen in circulation at the place, and consists of a combination of pieces, such as Chilian half ounces and a single Peruvian ounce, its value as evidence is largely increased.' Charging the jury that "the possession of stolen property is not alone sufficient to convict," and "it is merely a guilty circumstance which, taken in connection with other testimony, is to determine the question of guilt," is not erroneous on account of the expression "guilty circumstance."’♦ After the defendant, charged with larceny of a band of cattle, has given evidence tending to show that he innocently came into their possession by purchase from another, evidence is admissible in rebuttal to show that a steer belonging to a third person, which was found in the defendant's possession with the cattle of the complaining witness, was stolen.' § 166. Connecticut.-Possession of stolen goods after the theft, is prima facie evidence that the possessor is the thief, and, if unexplained in some rational manner, is sufficient evidence of guilt to justify a conviction. The presumption in the case is not one of law for the court, but of fact for the jury, who are to weigh all the circumstances attending the possession. The possession may be a joint possession by two or more persons, but it is necessary that it be an actual possession on the part of the person charged with the theft." § 167. Georgia.-Possession of stolen goods, shortly after a larceny, if unexplained and unaccounted for, will furnish a basis for a verdict of guilty against one so found in possession. 1 People v. Melvane, 39 Cal. 614. The nearer the possession to the time of the larceny, the stronger will be the inference of guilt; and the question of the result of the lapse of time is for the jury.' When it is established that a larceny has been committed, the fact that the stolen goods were immediately thereafter found in the possession of the defendant is presumptive evidence of his guilt.' Thus, possession a day and a half after the theft, with no attempt to explain the possession on arrest, and no proof of good character, will support a conviction." Yet it must be shown that larceny has been committed, and the theft of a lot of canned goods from a wholesale store is not established by finding a lot of such goods in the possession of accused, when it is not shown that the goods were missed from the stock, nor that the stock was short, as it will be presumed that the goods in question were sold to retail dealers, and by them sold to accused. And a charge that if the goods were found in defendant's possession, and such possession was left unexplained, "the law raises the presumption from that possession that he committed the larceny," is erroneous.* § 168. Illinois.-Possession of property soon after it is stolen is not of itself prima facie evidence that it was stolen by the defendant. Everything connected with the possession must be considered, such as its proximity to the larceny; whether it was concealed; whether the party admitted or denied the possession; whether other persons had access to the place where it was found; the demeanor of the accused, and his good character. But if the possession is recent after the theft, and there are no attendant circumstances, or other evidence to rebut the presumption, or to create a reasonable doubt of guilt, the mere fact of such possession will warrant a con 6 1 McAfee v. State, 68 Ga. 823. 2 Tucker v. State, 57 Ga. 503. Brown v. State, 59 Ga. 456. 4 Johnson v. State, 86 Ga. 90. Griffin v. State, 86 Ga. 257. An accomplice testified to the killing of the stolen hog, and a division of the meat, and portions of the meat supposed to be of the stolen hog, were found at the house of each of the defendants. Held, sufficient evidence to sustain a conviction.-Roberts v. State, 80 Ga. 772. • Conkwright v. People, 35 Ill. 204. |