Presumption of guilt arising from the possession of stolen property. It has already been stated that possession is presumptive evidence of property, supra, p. 17; but where it is proved, or may be reasonably presumed, that the property in question is stolen property, the onus probandi is shifted, and the possessor is bound to show that he came by it honestly; and if he fail to do so, the pre*20] sumption is that he is the thief or the receiver, according to circumstances. In every case, therefore, either the property must be shown to have been stolen, by the true owner swearing to its identity, and that he has lost it, or, if this cannot be done, the circumstances must be such as to lead in themselves to the conclusion that the property was not honestly come by. In the latter class of cases there are two presumptions: first, that the property was stolen; secondly, that it was stolen by the prisoner. The circumstances under which the former of these presumptions may be safely made are tolerably obvious. "Thus," it is said in 2 East, P. C. 656, "a man being found coming out of another's barn, and upon search corn being found upon him of the same kind with what was in the barn, is pregnant evidence of guilt. So persons employed in carrying sugar and other articles from ships and wharves, have often been convicted of larceny at the Old Bailey, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could not otherwise be proved. But this must be understood of articles like those above mentioned, the identity of which is not capable of strict proof from the nature of them." In R. v. Dredge, 1 Cox, Cr. Ca. 235, the prisoner was indicted for stealing a doll and other toys. The prosecutor proved that he kept a large toy-shop, and that the prisoner came into the shop dressed in a smock frock. After remaining there some time, from some suspicion that was excited, he was searched, and under his smock frock were found. concealed the doll and other toys. The prosecutor could not go further than to swear that the doll had once been his, but he could not swear that he had not sold it, and he had not missed it; and from the mode in which he kept his stock it was not likely that he would miss that or any other of the articles found on the prisoner. Erle, J., directed an acquittal. In R. v. Burton, Dears. C. C. 282, the prisoner was indicted for stealing pepper. He was found coming out of a warehouse in which there was a quantity of pepper both loose and in bags; when stopped and accused, he threw some pepper on the ground, and said, "I hope you will not be hard with me." Upon the case of R. v. Dredge being cited, Maule, J., pointed out the distinction that in this case the prisoner had, in fact, admitted that the pepper had not been honestly come by; and he added "if a man go

have the criminal charge hushed up, is not admissible. State v. Jaeger, 66 Mo. 173. But that such a proposal was made by the accused is admissible, as also in rebuttal its acceptance by the prosecutrix. McMath v. State, 55 Ga. 303.

'Shepherd v. State, 44 Ark. 39. The jury may infer that the whole was stolen from proof of part. People v. Fagan, 66 Cal. 534,

into the London Docks sober, and comes out of one of the cellars, wherein are a million gallons of wine, very drunk, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any wine was missed." In R. v. Hooper, 1 F. & F. 85, the prisoner was charged with stealing 190 lbs. weight of Lydney coal. He was left with a ton of that sort of coals in a cart at twelve o'clock, and delivered them, according to his orders, at one o'clock. At half-past twelve o'clock he sold 190 lbs. weight of Lydney coal to a person living in the same town, but there was no evidence of the quantity delivered being less than a ton, or of any coal having been missed. Willes, J., left it to the jury to say, whether the 190 lbs. of coal sold by the prisoner was stolen property.

If the property be proved to have been stolen, or may fairly be presumed to have been so, then the question arises whether or not the prisoner is to be called upon to account for the possession of *it. This he will be bound to do, and on his failing to do so, a [*21 presumption against him will arise, if taking into consideration the nature of the goods in question, they can be said to have been recently stolen. The presumption will be either that he stole the property or that he received it knowing it to be stolen. In what cases goods are to be considered recently stolen cannot be defined in any precise manner, but the following cases show what some of the judges have thought on the subject. Where stolen property (it does not appear of what description) was found in the possession of a person, but sixteen months had elapsed since the larceny, Bayley, J., held that he could not be called upon to account for the manner in which it came into his possession. Anon., 2 C. & P. 457, 12 E. C. L. Where two ends of woolen cloth in an unfinished state, consisting of about twenty yards each, were found in the possession of the prisoner, two months after they had been stolen, Patterson, J., held that the prisoner ought to explain how he came by the property. "The length of time," said that learned judge, "is to be considered with reference to the nature of the articles which are stolen. If they are such as pass from hand to hand readily, two months would be a long time; but here that is not so." R. v. Partridge, 7 C. & P. 551, 32 E. C. L. But Park, B., directed an acquittal where the only evidence against the prisoner was that certain tools had been traced to his possession, three months after their loss; R. v. Adams, 3 C. & P. 600, 14 E. C. L.; and Maule, J., did the same, where a horse, alleged to have been stolen, was not traced to the possession of the prisoner until six months from the date of the robbery. R. v. Cooper, 3 C. & Kir. 318. Where the prisoner was the servant of a firm which owned a large number of shovels, four of which were found in his possession, it was held that the question of larceny was properly left to the jury, although there was no evidence to show when they were missed, or how long they had been in his possession. R. v. Knight, 1 L. & C. 578.

What the person found in possession of stolen property is called upon to do is, to account for how he came by it. In R. v. Crowhurst, 1 C. &

K. 370, 47 E. C. L., the prisoner was indicted for stealing a piece of wood; upon the piece of wood being found by the police constable in the prisoner's shop about five days after it was lost, he stated that he bought it of a man named Nash, who lived about two miles off. Nash was not called as a witness for the prosecution, and no witness was called by the prisoner. Alderson, B., said to the jury, “in cases of this nature you should take it as a general principle that, where a man in whose possession stolen property is found gives a reasonable account of how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person, it is incumbent on the prosecutor to show that the account is false; but if the account given by the prisoner be unreasonable or improbable on the face of it, the onus of proving its truth lies on the prisoner." It appears, therefore, that the learned judge thought that in this case the prisoner's account was sufficiently reasonable to shift the burden of proof back again on to the prosecutor, but the report does not state whether or not the case was left to the consideration of the jury. In R. v. Wilson, 26 L. J., M. C. 45, the prisoner was indicted for stealing some articles of dress. It was proved that the property was stolen and sold by the prisoner. The prisoner on being apprehended said, that C. and D. brought them to his house and that he sold them. In consequence of *22] this C. and D. were apprehended, *and C. was tried and convicted for stealing other articles taken from the prosecutor's house at the same time as the articles in question; D. was discharged. The constable made inquiries as to the statement made by the prisoner of how he came by the goods, but no evidence of what transpired on such inquiries was received, being objected to by the prisoner's counsel. Neither C. nor D. were called as witnesses for the prosecution, and no witness was called by the prisoner. The jury found the prisoner guilty, and the conviction was upheld by the court of criminal appeal, upon the ground, as stated by Pollock, C. B., that there was some evidence for the jury upon which the prisoner might be convicted.

"If a horse be stolen from A.," says Lord Hale, "and the same day B. be found upon him, it is a strong presumption that B. stole him; yet I do remember, before a very learned and wary judge, in such an instance, B. was condemned and executed at Oxford assizes; and yet, within two assizes after, C. being apprehended for another robbery, upon his judgment and execution, confessed he was the man that stole the horse, and being closely pursued, desired B., a stranger, to walk his horse for him while he turned aside upon a necessary occasion, and escaped, and B. was apprehended with the horse, and died innocently." 2 Hale, P. C. 289. The following remarks by Mr. East on this subject are well deserving of attention. "It has been stated before that the person in whose possession stclen goods are found must account how he came by them, otherwise he may be presumed to be the thief; and it is a common mode of defence, to state a delivery by a person unknown, and of whom no evidence is given; little or no reliance can consequently be had upon it. Yet cases of that sort have been known to happen, where persons really innocent have

suffered under such a presumption; and, therefore, where this excuse is urged, it is a matter of no little weight to consider how far the conduct of the prisoner has tallied with his defence, from the time when the goods might be presumed to have first come into his possession." 2 East, P. C. 665.1

1 Pennsylvania v. Myers, Add. 320; State v. Jenkins, 2 Tyl. 379. [The recent possession of stolen property is presumptive evidence of guilt. State v. Brown, 75 Mo. 317; State v. Butterfield, Id. 297; Tucker v. State, 57 Ga. 503; Foster v. State, 52 Miss. 695; Dillon v. People, 1 Hun, 670; 4 Thomp. & C. (N. Y.) 208; Harrison v. State, 74 Ga. 801; State v. Daly, 37 La. An. 576.] The presumption that he who is found in possession of stolen goods recently after the theft was committed is himself the thief, applies only when this possession is of a kind which manifests that the stolen goods never came to the possessor by his own act, or at all events with his undoubted concurrence. State v. Smith, 2 Ired. 412. Thus where the defendant and two of his sons were indicted for stealing tobacco, which had been stolen in the night, was found next day in an outhouse of defendant, occupied by one of his negroes, and in which the defendant kept tobacco of his own, and the tobacco so found was claimed by him as his own, though proved to be the tobacco that had been stolen; held that it was error in the judge to charge the jury "that the possession of the stolen tobacco found on defendant, raised in law a strong presumption of his guilt." Id. The possession of a stolen thing is evidence to some extent against the possessor of a taking by him. Ordinarily it is stronger or weaker in proportion to the period intervening between the stealing and the finding in possession of the accused; and after the lapse of a considerable time, before a possession is shown in the accused, the law does not infer his guilt. State v. Williams, 9 N. C. 140. [The presumption arising from the possession of stolen property is not a legal one, but is for the jury. Ayres v. State, 21 Tex. App. 399.] The accused even when the stolen goods are found in his possession and under his control within a short time after the larceny is committed, and a presumption of guilt is raised, is not bound to show to the reasonable satisfaction of the jury that he became possessed of them otherwise than by stealing; the evidence may fall far short of establishing that, and yet create in the minds of the jury a reasonable doubt of his guilt. State v. Merrick, 19 Me. 398. Unexplained possession of stolen goods may be considered in determining the guilt of the possessor, but is not of itself sufficient to authorize a conviction. People v. Ah Ki, 20 Cal. 177; People v. Gassaway, 23 Id. 51. [Pettigrew v. State, 12 Tex. App. 225; Truax v. State, 12 Tex. App. 230; Casas v. State, 12 Tex. App. 59; Turbeville v. State, 42 Ind. 490; Green v. State, 68 Ala. 539; Alexander v. State, 60 Miss. 953; Harris v. State, 13 Tex. App. 309; Shepherd v. State, 44 Ark. 39. But see Tilly v. State, 21 Fla. 242.] The stealing must be proved in order to raise a presumption of guilt by the possession of the property of another. State v. Taylor, 25 Ia. 273. Possession of a stolen article raises a presumption of theft by the possessor, only in case such possession is so recent after the theft, that the possessor could not well have come by it except by stealing it. Gregory v. Richard, 8 Jones. (L.), 410; People v. Antonio, 27 Cal. 404. [State v. Jennett, 88 N. C. 665; Williamson v. State, 13 Tex. App. 514; Beck v. State, 44 Tex. 430; Yates v. State, 37 Tex. 202.] See further as to the presumption from possession of stolen property. State v. Bruin, 34 Mo. 537; Curtis v. State, 6 Cold. 9; State v. Brady, 27 Ia. 126; Billard v. State, 30 Tex. 367; People v. Kelly, 28 Cal. 423; State v. Gray, 37 Mo. 463; Conkwright v. People, 35 Ill. 204; Garcia v. State, 26 Tex. 209; State v. Creson, 38 Mo. 372; Unger v. State, 42 Miss. 642; Knickerbocker. People, 43 N. Y. 177; State v. Turner, 65 N. C. 592; Commonwealth v. Bell, 102 Mass. 103; Heed v. State, 25 Wis. 421. S. State v. Wallace, 47 Ia. 660.

Evidence of good character is admissible to rebut the presumption. State v. Crank, 75 Mo. 406; Contra, Wagner r. State, 107 Ind. 71. Where the accused gives a reasonable explanation of his possession of the stolen goods, and the State does not show the explanation to be false, he should be acquitted. Johnson v. State, 12 Tex. App. 385. Where a reasonable explanation has been given, the burden is upon the State of proving the falsity of such explanation. Irvine v. State, 13 Tex. App. 499. Compare Sitterlee v. State, Id. 587; People v. Hurley, 60 Cal. 74. The presumption of guilt from the possession of goods recently stolen is overcome by evidence raising a reasonable doubt. State v. Richart, 57 Ia. 245; State v. Hopkins, 65 Ia. 240; State v. Peterson, 67 Ia. 564. It is conclusive when unexplained, and there is no evidence of

The irreparable nature of the sentence of death, which so frequently followed conviction in former days, perhaps tended to increase the anxiety which both these learned persons evince on the subject of presumptive evidence.

With respect to the evidence of guilty knowledge in charges of receiving stolen goods, see post, "Receiving Stolen Goods."

Presumption of guilt arising from the possession of property in other cases. There are cases in which the possession of property carries with it the presumption of guilt, although the property has not been stolen; mostly cases where the property itself carries with it indications of a criminal act. Instances of cases in which such a presumption is drawn are the possession of filings and clippings of gold or silver coin, of more than five pieces of foreign counterfeit coin, of coining tools (see 24 & 25 Vict. c. 99), the possession of instruments or paper for foreign exchequer bills and bank notes (see 24 & 25 Vict. c. 98), the possession of deer, or implements for taking deer, of implements for housebreaking, of goods belonging to ships wrecked or stranded (see 24 & 25 Vict. c. 96), the possession of naval and military stores (see 38 & 39 Vict. c. 25, and other acts). These presumptions will be discussed under the headings of the principal offences to which they relate.

*Presumption of malice. Much of the difficulty connected

*23] with this subject will be removed by considering what malice is in the legal sense of the term. "Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse." Per Littledale, J., in M'Pherson v. Daniels, 10 B. & C. 272, 21 E. C. L.; "We must settle what is meant by the term ' malice,'" said Best, J., in R. v. Harvey, 2 B. & C. 268, 9 E. Č. L.; the legal import of this term differs from its acceptation in ordinary conversation. It is not, as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mischievous intention of the mind. Thus in the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is not necessary in support of such indictment to show that the prisoner had any enmity to the deceased; nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional and done without any justifiable cause. Thus where a jury returned a verdict of guilty of murder, but said that they believed it was done without premeditation, Byles, J., refused to receive the verdict, saying, "the prosecutor is not bound to prove that the homicide was com

good character. State v. Kennedy, 88 Mo. 341. The jury is to decide whether the explanation is reasonable. It is not to be taken as true simply because the prosecution does not rebut it. State v. Kimble, 34 La. An. 392. Declarations of the accused as to the character of his possession of the property alleged to have been stolen are not admissible, unless such possession and acts of ownership, at the time of such declaration are first proved. Cameron v. State, 44 Tex. 652. The statements of one accused of theft, when first arrested after being found in possession of stolen property, is admissible in evidence in his defence. Shackelford v. State, 43 Tex. 138; Darnell v. State, Id. 147.