CHAPTER XXX. INSTRUCTIONS TO THE JURY. § 246. Questions of fact for the jury. 247. Duty of the court as to instructions, generally. 250. Expressions of opinion. 251. Comments on evidence. 252. Charging as to matters of fact. 253. Misleading instructions. 254. Instructions assuming facts. 255. Urging jury to agree. 256. Instructions as to defense of alibi. 257. Instructions as to character. 258. Instructions as to circumstantial evidence. 259. Instructions as to identity. 260. Instructions as to intent or guilty knowledge. 261. Instructions as to intoxication. 262. Instructions as to ownership, want of consent, etc. 263 Instructions as to possession of stolen goods. 264. Instructions as to principals and accomplices. 265. Instructions as to reasonable doubt. 266. Instructions as to time and place. 267. Instructions as to value. 268. Necessity of written instructions. 269. Necessity of prayer for instructions. 270. What prayers should be granted, generally. 271. What may be properly refused. 272. Requests to charge as to circumstantial evidence. 273 Requests as to intent. 274. Requests as to ownership. 275. Requests as to possession of stolen goods. 276. Requests as to value. 277. Duty of court in granting or refusing; modifying prayer. 278. Further instructions. 279. Review of instructions; exceptions. § 246. Questions of fact for the jury.-On the trial of an indictment for larceny, the jury are the judges as to the title of the property, the taking and carrying away, and the intent.' 1 People v. Carabin, 14 Cal. 438; State v. Trask, 6 Vt. 355; 27 Am. Dec. 554; State v. Fisher, 70 N. C. 78; State v. Watson, 7 S. C. 63, 67. Where there is any testimony tending to show that the defendant took the property alleged to have been stolen, and removed it with the felonious intent charged, the sufficiency of the evidence is wholly a question for the jury.' But in all cases which are free from doubt, and in which there is no conflict in the evidence, the question of intent may be determined by the court. If, however, the facts are disputed, and the inference to be drawn is not clear, the question of intent should be left to the determination of the jury.' Thus, where there is evidence that one B. conspired with defendant to steal the goods, the good faith of a pretended sale of them to defendant by B. without the authority of the owner, is a question for the jury.' 1 State v. Carr, 13 Vt. 571. Johnson v. State, 73 Ala. 523. & State v. Colwell, 43 Minn. 378. Where a boy under twelve years is tried under Rev. Stat U. S. § 5469, for stealing letters from the mail, and it appears that he took them from boxes in the postoffice, carried them home, threw them carelessly aside, without opening or mutilating them, and, when asked about them by the postmaster, at once brought them back, it is a question for the jury whether he took them with criminal intent, or from a spirit of boyish mischief, and they may convict him or acquit him accordingly.-United States v. Wilson, 44 Fed. Rep. 593. The indictment charging a larceny of more than $50 in money, and there being testimony to support the indictment (including the restoration of the full amount lost)— although only one bill of $50, was specially identified-there was no error in leaving the jury to decide the amount stolen, as well as the other facts, that is, whether the larceny was of more than $50 or not.-Horton v. State, 66 Ga. 690. An indictment for grand larceny charged defendant with stealing a certain sum of money, under the following circumstances: That he was employed by the county board to make repairs and to furnish materials in the plumbing and ventilating of the court house, and that in his bill therefor, which was fully paid, he falsely pretended that he had furnished a quantity of material in excess of what he actually furnished, "with intent to defraud and deprive the county of its money," etc., and that, "by color and aid of the false and fraudulent representations," he did steal the said sum. Held, that it was a question for the jury whether these representations are such as ought to have misled a reasonably prudent man.-People v. Rice, 59 Hun 616. The following questions are for the jury: Whether the possession of stolen property by one on trial for larceny is strong or slight evidence of guilt.-People v. Titherington, 59 Cal. 598. Whether the severance from the freehold, and asportation of property alleged to have been stolen, were so separated by time as not to constitute one transaction.-State v. Berryman, 8 Nev. 262. Whether defendant intended to deprive the owner of his property permanently or temporarily.-State v. South, 4 Dutch. 28; 75 Am. 1 247. Duty of the court as to instructions, generally.The province of instructions from the court in criminal cases is to inform the jury what the law is connected with the case in hand, and to show them how to apply it to the particular facts involved. The sufficiency and applicability of the charge is to be tested by the pleadings and the evidence. The object and purpose is to enable the jury to deduce the proper conclusion from the evidence before them; and to accomplish this purpose the charge should be confined and adapted to the facts in proof.' The accused has a right to have the issues presented to the jury distinctly and affirmatively, and in a manner comprehensible by unprofessional men.' If there is evidence tending to prove a theft, but it is doubtful whether the theft, if proved, constituted a felony or a misdemeanor, the court, in charging the jury, should submit the issue to them.' § 248. What instructions are proper, generally.—Where on a trial for larceny of cattle, the proof shows that the cattle had been sold to an innocent purchaser, and slaughtered by him, an instruction that neither the guilt nor innocence of defendant, the ownership of the cattle, nor credibility of the witnesses depended on the question whether the owner had demanded of the purchaser payment for or possession of the cattle, is correct. So, under an indictment charging, in one count, larceny, which is an infamous offense, and in another count false pretenses, which is not, it is not error to instruct Dec. 250. The identity of the stolen property.-Hill v. State, 17 Wis 675; 86 Am. Dec. 736. 1 State v. Lev gne, 17 Nev. 435; Lander v. People, 104 Ill. 248. 2 Berry v. State, 8 Tex. App. 515. 3 Greta v. State, 9 Tex. App. 429. See, further, Rap. Crim. Proc. § 349. 4 Lee v. State, 14 Tex. App. 266. The defense stood upon a claim of bona fide purchase of the property, and adduced testimony which tended directly to prove that defense. The charge of the court wholly ignored the issue, but no objection was taken to it until the motion for a new trial was presented. Held, that the defect in the charge was necessarily prejudicial to the rights of the defendant, and is therefore material error.-Vincent v. State, 9 Tex. App. 303. Compare Cameron v. State, Id. 332; Sigler v. State, Id. 427. State v. Cardelli, 19 Nev. 319. the jury to return a general verdict; and, although the contrary would be the better practice, the Supreme Court will not reverse if the evidence shows defendant to have been guilty of the larceny.' Where the presiding judge, after charging the jury that they were judges of the law and the evidence, added that if they thought they knew more of the law than the judge, it was their privilege to so believe, it was held not to be error.' § 249. What instructions are improper, generally.—An instruction which tells the jury that it is larceny for a trespasser to kill a cow with intent to appropriate it to his own use without the consent of the owner, is erroneous in excluding the necessity for an asportation of the property as an element of the crime.' Selling property which the seller knows does not belong to him, and appropriating the proceeds to his own use, is not necessarily larceny, to constitute which a felonious taking is essential; and it is erroneous to give such a charge, if the accused claims that he sold all the property believing it was not his but that of his wife.* On an indictment for larceny under a statute providing that whoever, "with intent to deprive or defraud” the true owner of his property, shall be guilty of larceny, a charge reciting that the statute under which defendant was tried was passed after the Tweed trial, because the law was insufficient, etc., was prejudicial to the defendant. Where defendant insisted that the steer alleged to have been stolen was taken by him at the order of his employer, whose steer he believed it to be, an instruction that defendant "must establish that he took the steer under claim of right, color of title, or by mistake," was erroneous, as it placed the burden of proof on defendant. On the trial of an indictment containing a count for larceny, and one for receiving stolen goods, it is improper to instruct the 1 Davis v. State, 85 Tenn. 522. 2 State v. Johnson, 30 La. An. Part II. 904. 710. Alexander v. State, 60 Miss. 953; see, also, State v. Perkins, 104 N. C. • Watkins v. State, 60 Miss. 323. People v. Pollock, 51 Hun 613. 'State v. Huffman, 16 Or. 15. jury that, if they find the accused guilty, they must specify on which count their indictment is based.' Where the evidence failed to disclose a theft by defendant, larceny being the charge, the court should not instruct as to the law in regard to receiving stolen goods.' In a prosecution for theft of a steer, a charge to the jury, in effect, that the evidence did not authorize them to find a verdict for theft, but if they believed from the evidence that the defendant did unlawfully kill the animal without the consent of the owner, then they should find him guilty of such offense and assess his punishment at a fine not exceeding $1,000, is error, inasmuch as theft does not include such an offense, and a conviction therefor cannot be maintained under an indictment for theft." § 250. Expressions of opinion.-As a general rule the trial judge should not express his private opinion upon matters of fact to the jury, but an instruction to the jury "that it was 1 Cook v. State, 16 Lea 461. Johnson v. State, 13 Tex. App. 378. & Beavers v. State, 14 Tex. App. 541. In applying these principles, the following charges to the jury have been held ground for reversal: An instruction, on a trial for stealing certain specially designated goods in a store, that defendant could be convicted upon showing that he stole "any" of the goods in the store.-State v. Babb, 76 Mo. 501. An instruction that defendant was guilty of grand larceny if she "stole, took, and carried away" a cow, and that unless she did so she was not guilty.-State v. Campbell, (Mo.) 18 S. W. Rep. 1109. An instruction on a trial for theft of a horse, that "a man may steal in broad daylight, and in the presence of his neighbors, as much so as in the night."-Stuckey v. State, 7 Tex. App. 174. An instruction that if the jury should "believe from the evidence that the defendant himself did take the horse in question, in such a manner as to constitute theft, or, knowing the same to be stolen, received the same, then he is guilty of the theft thereof."--Gonzales v. State, 13 Tex. App. 48. An instruction that the possession of the property might be considered in establishing the guilt or innocence of defendant.-Smith v. State, 13 Tex. App. 507. An instruction that if part of the property stolen was found and identified, the theft of the rest might be inferred from that fact, if all was stolen at the same time and place.—White v. State, 17 Tex. App. 188. An instruction, on the trial of defendants jointly indicted that "before you can convict these defendants, or either of them, you must be satisfied beyond a reasonable doubt that the defendants, both or one of them, committed the theft themselves, or that others committed the theft, and these defendants, one or both of them, was present and aided by acts those committing the theft."-Tittle v. State, (Tex.) 17 S. W. Rep. 1118. * * * * |