Opinion of the Court-Truitt, J. In People v. Chambers, 18 Cal. 382, it was held that: "It is well settled that the possession of the fruits of a crime is a circumstance to be considered in determining the guilt of the possessor, but the authorities seem to hold that this circumstance is not of itself sufficient to authorize a conviction. . . . . There are many cases in which an explanation would be impossible; and in such cases to throw the burden of explanation upon the accused would be to slam the door of justice in his face. We think the true rule upon the subject is that laid down by Greenleaf in the section referred to. 'It will be necessary,' says he 'for the prosecutor to add the proof of other circumstances indicative of guilt in order to render the naked possession of the thing available toward a conviction.' The case of Askew v. United States, 2 Okl. Cr. 155, 101 Pac. 121, is a leading case on the question involved in the instructions that we are now considering, and as the point is so fully and ably discussed in the opinion in that case, we quote at length from said opinion as follows: "The fifth assignment of error presented by appellant is that the court erred in its instructions to the jury in the following: "The unexplained possession, if there should be such unexplained possession, of recently stolen property, is prima facie, but not conclusive, evidence of his guilt."' "Exception was taken to this charge of the court at the time it was given, and in view of the holding of this court in the case of Slater v. United States, 1 Okl. Cr. 275, 98 Pac. 110, in which the opinion was rendered by Chief Justice Furman, it is not considered necessary in presenting this case to do more than call the attention of the court to that case, which held: 'It is error to instruct a jury that the possession of property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence.' "The case under consideration here is even stronger than that of Slater v. United States, for in the case at bar the court instructed the jury that the possession of recently stolen prop Opinion of the Court-Truitt, J. erty is prima facie evidence of his guilt, whereas, in the Slater case, the trial court in its instructions went no farther than to state that the possession of recently stolen property is a presumption against the party having possession. The court held in the latter case that: "The effect of this instruction is to inform the jury that the possession of property recently stolen raises a legal presumption of guilt against the party having it in his possession, and that the law requires an explanation from him of such possession. We do not so understand the law. In the case of Oxier v. United States, 1 Ind. Ter. 91, 38 S. W. 332, Judge Lewis says: "The later and the sounder and better rule is believed to be that which makes the presumption, arising from the possession of recently stolen property, not a presumption of law, but of fact; in other words, an inference to be drawn or not, as the jury may determine in the light of all the evidence." " "This court cites with approval in this connection the case of Blair v. Territory, 15 Okl. 550, 82 Pac. 653, and holds: 'The instruction complained of was upon the weight of the evidence, which is for the determination of the jury, and was therefore error.' "It follows, therefore, if the court adheres to the rule laid down in Slater v. United States, and the rule therein enunciated by the court seems to be both forceful, and logical, that fatal error was committed by the trial court in giving the jury the instruction complained of under the head of fifth assignment of error, and that this case should be reversed and remanded." But these authorities are only given to show the rule regarding this question adopted by other courts and the reason. therefor, as set out in their opinions, for the question under consideration was before this court in State v. Seymour, 7 Ida. 257, 61 Pac. 1033, and in that case the court after considering some other alleged errors in the record said: "The only question remaining is,. Was the possession of the animal by the defendant a felonious possession? The bare possession of property recently stolen is not conclusive evidence of guilt. Especially is this so of property of the kind involved in this case. Opinion of the Court-Truitt, J. The property involved in that case was of the same kind as the property involved in this case. In State v. Sanford, 8 Ida. 187, 67 Pac. 492, the court said: "The first error assigned is as follows: 'The court erred in his charge to the jury in reference to the possession of recently stolen property-more particularly the words "is a guilty circumstance, and should be considered by you."' A careful examination of the instruction to which this error apparently refers shows that the instruction was not erroneous. The language used is somewhat unfortunate, but the instruction conveyed to the jury, who could get no different idea therefrom, the rule of law that possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred." But this case cannot be accepted as authority in support of the instructions under consideration, although it is referred to by respondent in its brief for that purpose. The court told the jury that under the evidence in that case the possession of recently stolen property was a circumstance from which the guilt of the accused may be inferred. But that is very different from telling the jury that, "the possession of stolen property immediately after the theft is sufficient to warrant a conviction," which the court did in the case at bar. In State v. Sanford, supra, the instruction simply said the possession of recently stolen property was a circumstance, from which the guilt of the defendant might be inferred. The court did not tell the jury that such possession was "in law a fact tending to show the guilt of defendant," or that "possession of stolen property immediately after the theft is sufficient to warrant a conviction." But in this case the jury was instructed that it might conclude that the defendant was guilty from the fact of having in his possession recently stolen property. And every time the court used the phrase "recently stolen property" it was assuming a fact as established that should have been left to the jury to decide. The difference. in the meaning of the words inference and conclusion is well known. The Standard dictionary defines these words as follows: "A conclusion is the absolute and necessary result of Opinion of the Court-Truitt, J. the admission of certain premises; and inference is a probable conclusion toward which known facts, statements, or admissions point, but which they do not absolutely establish." Before a defendant can be convicted in a case like this, four things must be established to the satisfaction of the jury beyond a reasonable doubt: (1) That the property was stolen; (2) that either the thief delivered it to the defendant, or to someone else who delivered it to him; (3) That at the time the defendant received the possession of the property he knew it was stolen, or that it was received under such circumstances that any reasonable person of ordinary observation would have known that it was in fact stolen property; and (4) that he received it for his own gain or to prevent the owner from again possessing it. The second and fourth assignments of error presented by appellant are based upon the insufficiency of the evidence to convict the defendant, and as we have heretofore stated in this opinion, these assignments of error may be considered together. But we do not deem it necessary in deciding the case to go into an extensive review of the testimony in the record as we think there was prejudicial error in the instructions which we have considered. However, we may say that the initial and vital point in order to convict the defendant, namely, that the property was stolen, has very meager support from the evidence. Karl Falk was the most important witness on this point in the case. He testified that twenty-three head of cattle were brought to the slaughter-yards of the Robinson-Janks Packing Co. on Sunday evening, November 17, 1912, by one Frank Dolen. The cattle were received by Falk, Charley Janks and J. S. Kirkbride. The defendant was not there when they were received. There is no evidence that Dolen had stolen these cattle, or that he had received them from the thief if they were stolen. Dolen never seems to have been charged with the larceny of this property, and he did not act like a guilty man so far as the record shows, for Falk says he saw him in the office of said packing company on December 7, 1912, which was about twenty days after he delivered these cattle to the packing company. It is only claimed that two Points Decided. head of these cattle were stolen, and a number of different ways may readily be suggested to account for them being there without any criminal act or intent on the part of Dolen. But without directly holding the evidence as to whether or not said property was in fact stolen insufficient to support the verdict of the jury, we think there was reversible error in the instructions of the court on the point that we have considered. The judgment must, therefore, be reversed and a new trial ordered. Sullivan, C. J., concurs. (May 11, 1914.) ZACHARIAH MONTGOMERY, Respondent, v. G. R. GRAY, VERDICT-EVIDENCE TIONS. Appellant. [144 Pac. 646.] -SUFFICIENCY OF EXCESSIVE DAMAGES-INSTRUC 1. Held, that the evidence is sufficient to sustain the verdict. 2. Held, that there is no evidence indicating that the verdict was rendered under the influence of passion and prejudice. 3. Held, that the court did not err in giving or refusing to give certain instructions. APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge. Action to recover the value of certain timber alleged to have been sold and delivered to the defendant. Judgment for plaintiff. Affirmed. Allen & Allen and Ezra R. Whitla, for Appellant. E. W. Wheelan and O. J. Bandelin, for Respondent. Counsel cite no authorities on points decided. |