Opinion of the Court-Truitt, J.

prosecution for receiving stolen property, this identical point was presented, and in passing upon it the court said:

"The intent, as in larceny, is the chief ingredient of the offense. Thus, where A authorizes or licenses B to receive property lost or stolen, and B receives the property from the thief knowing it to be stolen, with a felonious intent, he is guilty of a felony in receiving the property, notwithstanding the license. (Wharton, sec. 1891.)

"Under our statute there is another essential fact to be proven-that is, that the defendant, for his own gain, or to prevent the owner from again possessing his property, bought, received or aided in concealing stolen goods. There is no doubt, from the evidence in this case, in regard to the fact that the defendants knew the goods were stolen. Their knowledge is a conceded fact. It is also an undisputed fact that the stolen goods, in passing from the custody of the thieves to Morrow, the agent of the owners, passed through the hands, first, of defendant Isaacs, and, second, through the hands of defendant Aldrich. The question in the case is then narrowed down to this: Whether defendants received the goods for their own gain, or to prevent the owner from again possessing his property. This, in our judgment, is the turning point upon which the decision of the case must hinge."

In this case the judgment was reversed and the case remanded, not because the court failed to instruct as to the point in question but because the proof failed to show that the defendant received the property for his own gain. We think the court in the case at bar erred in omitting to include as one of the elements of the crime that the defendant must have bought or received the property for his own gain or to prevent the owner from again possessing it. But there are two reasons why this error did not prejudice the rights of the defendant, viz.: First, the court in instruction numbered nine clearly stated the three elements of the crime as specified in said sec. 7057, and alleged in the information, and charged the jury that in order to convict the defendant these three elements of the crime must be proved beyond a reasonable doubt; and, second, the testimony clearly proved that if de

Opinion of the Court-Truitt, J.

fendant took the property at all, he bought and received it, partly, at least, for his own gain.

In People v. Morine, 61 Cal. 367, it was held that, "It is not necessary that each instruction should fully state the law. of the case, but any instruction may be helped out and explained by another on the same point; and in such a case the court will look to all the instructions in pari materia for the purpose of determining whether the law has been correctly given." In State v. Marren, 17 Ida. 766, 107 Pac. 993, after considering an instruction given in that case by the trial court, it is said: "Although the instruction referred to contains matter which should not have been given to the jury, we are, however, of the opinion that the appellant could have been in no way prejudiced by the giving of such instruction." And it has been held by this court in a number of cases that substantial prejudice must be shown in order to constitute reversible error. And unless that can be shown, the case will not be reversed for errors which fall short of that test. We do not think the error complained of in the first objection to the instruction under consideration could have been prejudicial to the defendant under the circumstances of the case and the evidence found in the record. But the second objection urged to said instruction, to the effect that the fact. that said property was stolen may be proved by the unexplained possession of recently stolen property, presents a more serious question. In the first place, the use of the phrase "recently stolen" as applied to the property in question was not warranted by the evidence, and even if it was, it was not proper for the court to decide this matter. The question as to whether, if this property was stolen, it was "recently stolen," should have been left to the jury to decide from the evidence in the case, because it has an important bearing upon the question of the guilt of the person found in possession of the stolen property. If the adverb "recently" does not have some bearing on the question of the guilt of the person who has received stolen property, why not just say in the possession of stolen property? Why add the limiting adverb as to time if it has no relevancy to the guilt of the

Opinion of the Court-Truitt, J.

person accused? It will be found from an examination of the authorities relating to prosecutions for buying or receiving stolen property, that whether the property was recently stolen, or whether a long time has elapsed since the larceny, makes a very material difference in determining the guilty knowledge of the person having such possession. If the property in a few hours, or in a few days, after it was stolen from its owner, was found in the possession of a person, the presumption that he received it from the thief would usually be much stronger than if it was received weeks or months after the theft. In the case at bar, the time when this property was stolen, if it was stolen, is vague and uncertain. The owner of the property, H. P. Larsen, testified that he was present at the roundup or gathering of his cattle in the fall of 1912, and further said: "I think I had in this gathering the animals whose hides I discovered at this time." But he also testified that he had from 250 to 300 head of cattle. Now it is apparent that in gathering and looking over this number of cattle he might easily be mistaken about seeing these two cattle in the herd at the time he mentions. The hides of the cattle claimed to have been received and slaughtered by the defendant were mainly identified by the brand on them, so there is much uncertainty as to the actual time of the larceny if they were stolen. If the owner did not see them at the 1912 round-up, then the thief, if they were stolen, may have stolen them a year or two before they were delivered at the slaughter-house of the Robinson-Janks Packing Co.

Goldstein v. People, 82 N. Y. 231, is a case relied on to sustain the court's instructions in this case, to the effect that the possession of recently stolen property, unless explained, will warrant a conviction, but the facts were so different in that case from the facts in this case, that we do not think it sustains the point contended for by the state. In that case the court instructed: "That the possession of stolen goods immediately after the larceny, if under peculiar and suspicious circumstances, when there is evidence tending to show that some other person or persons stole the property, such possession not being satisfactorily explained, would warrant

Opinion of the Court-Truitt, J.

the jury in convicting the accused of receiving stolen goods, knowing them to have been stolen." The italics in this instruction are ours for the purpose of distinguishing this instruction from the instructions under consideration in the case at bar.

The facts upon which this instruction was based were given in the opinion of the court as follows: "It was proven by satisfactory evidence that the goods were the property of Morris and had been stolen from him by some persons other than the prisoners. The theft was at once discovered, and upon instant search they were found in a small room of which Bernard Goldstein had the right of temporary possession for a special purpose, adjoining a room occupied by himself and wife, and into which a door from their room opened." And we may gather what was meant by the phrase "immediately after the larceny" in said instruction from what the court further said in the opinion: "If the goods came to the possession of the prisoners or either of them, it was within a very short time, an hour or two at most, after the larceny, and as early as 5 o'clock in the morning, and this, with other incidents which happened in its connection were of an unusual character, fully justifying in that respect the hypothesis submitted, of 'peculiar and suspicious circumstances.'" But in this case there is very slight, if any, evidence in the record to support the hypothesis of "peculiar and suspicious circumstances" that was presented to the jury in that case. But a more weighty objection to this part of the instruction is that the court plainly told the jury that, "You are instructed that the larceny of such property, and consequently the fact that such property was stolen may be proven by the unexplained possession of recently stolen property, this being a fact and circumstance from which the jury may infer that the property was in fact stolen. . . . . You have the right to consider the fact that the possession of recently stolen property is in law a strong incriminating circumstance, tending to show such larceny . . . . and you are, therefore, instructed that the possession of recently stolen property, the possession being unexplained, is a circumstance from

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which guilt may be inferred." And in the third instruction this point is further impressed upon the jury by the court as follows: "Possession of stolen property immediately after the theft is sufficient to warrant a conviction. ... And in this case if the jury believe from the evidence as herein defined, first, that the property was stolen, and further find that the defendant was possessed of such property soon after it was stolen, then such possession is in law a fact tending to show the guilt of defendant, and from which an inference may be drawn tending to show the guilt of the defendant if such possession remains unexplained." The italics are ours. We think these instructions were erroneous and prejudicial to the defendant. In fact, under these instructions, the jury could hardly do otherwise than find a verdict of guilty.

Thompson on Trials, 2d ed., sec. 2536, in discussing the rule as to the presumption arising from the possession of recently stolen property, says:

"This rule, it is perceived, is a branch of the law of circumstantial evidence; and the value of a rule which ascribes to a particular circumstance the character of conclusive evidence of guilt, unless rebutted or explained, may well be questioned under a system of trial which commits to the jury in every criminal case the conclusive power of judging of the existence of the criminal intent. The sounder view is, that it is better that twelve men, sitting in the jury box, should apply their collective experience in the affairs of everyday life to such a circumstance, in view of its surroundings, as shown by the evidence, and say whether a conclusion of guilt is to be drawn from it or not. If this view is correct, it must follow that a peremptory instruction, laying down the rule in the language in which it is formulated in the books, must have the effect of depriving them of that independent judgment of the facts, which the law, under our modern system of trial by jury, intends to give them. The sound view is that, whether the recent, unexplained possession of stolen goods is conclusive evidence that the possessor committed the larceny, is a question of fact exclusively for the jury."