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If the property has no market value at the time of the trial, it is competent to prove the purchase price.73 The owner's opinion of the value of the property has been received."

The jury may fix the value of the property according to the highest estimate of any witness.75

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§ 299. Inference from possession of the property stolen.-The rules which are elsewhere explained, in connection with the question of a presumption of guilt arising where property stolen from a house in which a burglary has been committed is found in the possession of the accused, are applicable on an indictment for larceny.

According to the most approved modern view, the possession of stolen property, however recent and unexplained, creates no presumption of law that the possessor committed the larceny, and consequently a conviction of larceny based upon an instruction to that effect, and casting the burden of proving the innocent character of the possession upon the accused, must be set aside. The fact of the possession of stolen goods may always be shown. From proof of this fact, in connection with other evidence, the jury may infer as a matter of probability and reasoning, but not as a rule of law, that is, they may, under the judicious guidance of the court, draw the inference of fact that the possessor is guilty of stealing them."

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W. 119; Orr v. State, 107 Ala. 35, 18 So. 142; Hix v. People, 157 Ill. 382, 41 N. E. 862; State v. Wilson, 95 Iowa 341, 64 N. W. 266; Dobson v. State, 46 Neb. 250, 64 N. W. 956; State v. Velarde, 59 Cal. 457, 563; Smith v. People, 103 Ill. 82, 85; State v. Raymond, 46 Conn. 345; Underwood v. State, 72 Ala. 220, 222; Boykin v. State, 34 Ark. 443, 445, 446; State v. Hoffman, 53 Kan. 700, 708, 709, 37 Pac. 138; State v. Hodge, 50 N. H. 510; Ingalls v. State, 48 Wis. 647, 4 N. W. 785;"Conkwright v. People, 35 Ill. 204; State v. Pennyman, 68 Iowa 216, 217, 26 N. W. 82; Harper v. State, 71 Miss. 202, 203; State v. Jennett, 88 N. Car. 665, 667; Com

§ 300. Recent and exclusive character of possession.—The possession must not be too remote in time from the theft, or it will not have much value as evidence.78 The lapse of time between the taking and the date of the possession is a very important circumstance. If it is so great that no connection between them can reasonably be imagined, evidence of possession is of little weight, and, in an extreme case, it may be excluded as irrelevant.

But possession of the property so soon after the theft that the possessor could not have obtained it unless he had just stolen it, may, in the absence of a credible explanation, sustain a conviction.79 As the intervening time lengthens the cogency of this evidence diminishes.80 But the period intervening which ought

monwealth v. Montgomery, 11 Met. (Mass.) 534, 45 Am. Dec. 227; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Sahlinger v. People, 102 Ill. 241; Shepperd v. State, 94 Ala. 102, 10 So. 663; Gravely v. Commonwealth, 86 Va. 396, 400, 10 S. E. 431; Pace v. State (Tex. Cr., 1894), 31 S. W. 173; Perry v. State (Ala., 1908), 46 So. 470; Perry v. People, 38 Colo. 23, 87 Pac. 796; McDonald v. State (Fla. 1908), 47 So. 485; State v. Toohey, 203 Mo. 674, 102 S. W. 530; State v. Sprague, 149 Mo. 409, 50 S. W. 901; State v. Drew, 179 Mo. 315, 78 S. W. 594; 101 Am. St. 474n; Territory v. Livingston, 13 N. Mex. 318, 84 Pac. 1021; State v. Lax, 71 N. J. L. 386, 59 Atl. 18; Randolph v. State (Tex. Cr., 1899), 49 S. W. 591; Kennon v. State, 46 Tex. Cr. 359, 82 S. W. 518; Fool v. State, 51 Tex. Cr. 596, 103 S. W. 892; Bryant v. State, 116 Ala. 445, 23 So. 40; State v. Burns, 19 Wash. 52, 52 Pac. 316; State v. McClain, 130 Iowa 73, 106 N. W. 376. Evidence of possession of stolen goods is admissible. 101 Am. St. 485. Evidence of possession of stolen goods does not warrant conviction if the jury have a reasonable doubt of guilt. 101 Am. St. 503. The possession of a box in which stolen

goods were packed may be equivalent, in force and effect, to the possession of the goods. People v. Block, 15 N. Y. S. 229, 60 Hun (N. Y.) 583. without opinion; State v. Record (N. Car., 1909), 65 S. E. 1010.

79 Goldstein v. People, 82 N. Y. 231; Davis v. State, 50 Miss. 86, 94, 95; Commonwealth v. Montgomery, 11 Met. (Mass.) 534, 45 Am. Dec. 227; Beck v. State, 44 Tex. 430, 432; Sloan v. People, 47 Ill. 76, 2 Russ. on Crimes (9th Am. Ed.) 337; Graves v. State, 12 Wis. 591; Williams v. State, 40 Fla. 480, 25 So. 143, 74 Am. St. 154; Bryant v. State, 4 Ga. App. 851, 62 S. E. 540; Wiley v. State (Ark., 1909), 124 S. W. 249.

70 Blaker v. State, 130 Ind. 203, 205, 29 N. E. 1077, 1078; Branson v. Commonwealth, 92 Ky. 330, 17 S. W. 1019, 13 Ky. L. 614; Brown v. State, 59 Ga. 456, 458; Madden v. State, 148 Ind. 183, 47 N. E. 220; State v. Eubank, 33 Wash. 293, 74 Pac. 378; Ingraham v. State, 82 Neb. 553, 118 N. W. 320; Elliott Evidence, § 3058; Scott v. State, 119 Ga. 425; 46 S. E. 637; State v. Broxton, 118 La. 126, 42 So. 721; Miller v. People, 229 Ill. 376, 82 N. E. 391.

80 State v. Jennett, 88 N. Car, 665,

to nullify any presumption from possession cannot be fixed, depending not so much on mere lapse of time as on other circumstances and the defendant's declarations explanatory of the possession.81

Though the element of time is important, other facts are to be considered; among them is the character of the goods, for if they are light and portable, such as coin, bank notes or jewelry, which pass easily and quickly from hand to hand, possession a few days after the theft might not, as matter of law, be recent.82 The reverse is true when the goods are bulky and cumbersome. But generally the recency of possession is a question for the jury on all the evidence.

Not only must the possession be recent, but it must be personal, exclusive, and with a distinct, implied or express assertion of ownership. If these essentials are not proved, a conviction based on the fact of possession must be set aside.83 The possession of the stolen property is personal and exclusive if it is exclusive as to all persons not particeps criminis. As to accomplices the possession of one is the possession of all. A mere constructive possession is not enough. The accused will not be presumed to have stolen articles which he does not know he possesses. If other persons have equal right and facility of access with him to a room, trunk or closet where stolen goods are discovered, possession, not being exclusive or personal, is of no value as evidence. 85

66; Martin v. State, 104 Ala. 71, 16 So. 82, 84; People v. Deluce, 237 Ill. 541, 86 N. E. 1080.

81 State v. Miller, 45 Minn. 521, 522, 48 N. W. 401; Davis v. State, 50 Miss. 86, 94, 95; State v. Jennett, 88 N. Car. 665, 667; State v. Lange, 59 Mo. 418, 422.

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State v. Castor, 93 Mo. 242, 250, 5 S. W. 906; Davis v. State, 50 Miss. 86, 95; Rex v. Partridge, 7 Car. & P. 551.

83 State v. Castor, 93 Mo. 242, 250, 5 S. W. 906; Clark v. State, 30 Tex. App. 402, 17 S. W. 942; People v. Hurley, 60 Cal. 74, 75, 44 Am. 55; Blaker v. State, 130 Ind. 203, 205, 29

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N. E. 1077; People v. Wilson, 7 App. Div. (N. Y.) 326, 40 N. Y. S. 107; State v. Lackland, 136 Mo. 26, 37 S. W. 812; State v. Deyoe, 97 Iowa 744, 66 N. W. 733; Funderburg v. State (Tex. Cr., 1896), 34 S. W. 613; People v. Wilson, 151 N. Y. 403, 45 N. E. 862; Van Straaten v. People, 26 Colo. 184, 56 Pac. 905; Bryant v. State, 4 Ga. App. 851, 62 S. E. 540.

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§ 301. Burden of explaining possession-Character of explanatory evidence. Though hardly accurate to say that the burden of explaining the possession of stolen property is upon the accused, yet he must offer some reasonable and probable explanation." It is reversible error not to permit him to do so, or to reject any relevant evidence tending to produce that result.88 If, having the power and opportunity he offers no explanation,89 or one which is unsatisfactory in that it does not show that the character of his possession is consistent with innocence, a conviction will be justified." He may prove that he bought the goods,"1 that he offered to pay the owner for them,92 or that he became possessed of them, believing he was the owner's agent." The accused may show that he received money and checks from the prosecuting witness, prior to the alleged larceny of a check which is found found in the possession of the accused, it is openly exposed where the owner may readily find it, and will probably discover it, and he makes no effort to conceal it, but gives an account of his possession, which is probable from the nature of the article, these circumstances would be sufficient to destroy the presumption arising from mere possession." Jones v. State, 30 Miss. 653, 655.

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Baker v. State, 80 Wis. 416, 421, 50 N. W. 518; State v. Eubank, 33 Wash. 293, 74 Pac. 378. Cf. Waters v. People, 104 Ill. 544, 548. An instruction which requires the accused to satisfy the jury of the good faith of his claim of title is error. Johnson v. United States (Okla. App.), 99 Pac. 1022.

87

State v. Vinton (Mo., 1909), 119 S. W. 370.

88 Crossland v. State, 77 Ark. 537, 92 S. W. 776; State v. Winter, 83 S. Car. 153, 65 S. E. 209.

89

State, 33 Tex. 480; State v. Miller, 45 Minn. 521, 522, 48 N. W. 401; Tilly v. State, 21 Fla. 242, 249; State v. Jennings, 81 Mo. 185, 209, 51 Am. 236; Waters v. People, 104 Ill. 544, 548; Commonwealth v. McGorty, 114 Mass. 299; Miller v. People, 229 Ill. 376, 82 N. E. 391; State v. McKinney, 76 Kan. 419, 91 Pac. 1068; State v. Vinton (Mo., 1909), 119 S. W. 370. The denial by the accused of his identity when discovered in the possession of the property, and his absurd explanations of his whereabouts which are inconsistent with the testimony of other witnesses, are corroborative of possession sufficient to warrant submission to the jury. People v. Vidal, 121 Cal. 221, 53 Pac. 558.

91 Though he has forgotten the name of the vendor. Merriwether v. State (Tex. Cr.), 115 S. W. 44; Jones v. People, 12 Ill. 259, including all pertinent declarations made by himself or the vendors. People v. Dow

Adams v. State, 52 Ala. 379, 381; ling, 84 N. Y. 478, 485. Tilly v. State, 21 Fla. 242, 249.

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State v. Garvin, 48 S. Car. 258, 26 S. E. 570; Franklin v. State, 37 Tex. Cr. 312, 39 S. W. 680; State v. Hogard, 12 Minn. 293; Mondragon v.

92

93

2 Hall v. State, 34 Ga. 208, 210. Lewis v. State, 29 Tex. App. 105, S. W. 1008; Chambers v. State, 62 Miss. 108.

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in his possession to prove the lawfulness of his possession of the check." These and other explanatory facts may be shown even where the defendant has failed or refused to give a satisfactory explanation of the possession of the property when it was first found in his possession." If the explanatory evidence creates a reasonable doubt in the minds of the jurors that he stole the property, he should be acquitted." It is not absolutely requisite that the accused should prove that his possession was honest. It is sufficient to acquit him if he gives a natural, reasonable and probable explanation of how he acquired possession which the prosecution does not show to be false."7 Such an explanation may be taken as true if the state, relying for a conviction and proof of the corpus delicti upon recent possession alone, does not prove its falsity or attempt to do so." If the explanation is absurd, unreasonable or unsatisfactory it is the right of the jury, and often their duty, to disregard it though no evidence in rebuttal on that point is offered.oo But when the explanation offered is reasonable and probable it must be overcome, and its falsity shown by positive and definite evidence. Thus if the accused states to a witness that he purchased the prop

94

Crossland v. State, 77 Ark. 537, Newton v. State (Tex. Cr.), 48 S. W. 92 S. W. 776.

Harris v. State, 15 Tex. App. 411; Echols v. State, 41 So. 298, 147 Ala. 700, not reported in full; People v. Farrington, 140 Cal. 656, 74 Pac. 288. **State v. Peterson, 67 Iowa 564, 367, 25 N. W. 780; Grentzinger v. State, 31 Neb. 460, 462, 48 N. W. 148; Clark v. State, 30 Tex. App. 402, 17 S. W. 942; Baker v. State, 80 Wis. 416, 421, 50 N. W. 518; Blaker v. State, 130 Ind. 203, 207, 29 N. E. 1077; State v. Wilson, 95 Iowa 341, 64 N. W. 266; State v. Cross, 95 Iowa 629, 64 N. W. 614; Gilmore v. State (Tex. Cr., 1895), 33 S. W. 120; Crawford v. State, 113 Ala. 661, 21 So. 64; State v. Dillon, 48 La. Ann. 1365, 20 So. 913; State v. Lax, 71 N. J. L. 386, 59 Atl. 18; Johnson v. United States (Okla.), 99 Pac. 1022; 34-UNDERHILL CRIM. EV.

507; Isham v. State (Tex.), 49 S. W. 581; McDonald v. State (Fla., 1908), 47 So. 485; Douglas v. State (Ark., 1909), 121 S. W. 923.

"Hart v. State, 22 Tex. App. 563, 3 S. W. 741; Garcia v. State, 26 Tex. 209, 210; State v. Moore, 101 Mo. 316, 14 S. W. 182; Jones v. State, 30 Miss. 653, 655, 64 Am. Dec. 175; State v. Castor, 93 Mo. 242, 250, 5 S. W. 906; Yarbrough v. State, 115 Ala. 92, 22 So. 534. As to changing brands on cattle, Williams v. State, 40 Fla. 480, 25 So. 143, 74 Am. St. 154.

People v. Hurley, 60 Cal. 74, 77, 44 Am. 55; Powell v. State, II Tex. App. 401, 402; Johnson v. State, 12 Tex. App. 385, 391; State v. Kimble, 34 La. Ann. 392, 395, 3 Greenl. on Evidence, § 32; Franklin v. State, 3 Ga. App. 342, 59 S. E. 835.

"Tilly v. State, 21 Fla. 242, 249.

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