Jones v. State

Handy, J.:

Apart from the testimony of the witness, Sarah Jones, the only proof of the larceny in this case consists of the evidence that the article lost was found in the possession of the accused. That witness, it is true, states that the accused brought the article to the house where he resided. But she proves that this took place several months before the property is proved to have been lost by the owner; and if her testimony could have any weight, it must have produced an acquittal.

The evidence shows that the goods were not found in the possession of the accused until the lapse of five or six months after the taking; and the question here presented, is, whether such possession, found after such a lapse of time, of itself raises a. presumption in law of a felonious taking by the accused.

No definite length of time, after loss of goods and before possession shown in the accused, seems to be settled, as raising a presumption of guilt. Where the goods are bulky, or inconvenient of transmission, or unlikely to be transferred, it seems that a greater lapse of time is allowed to raise the presumption than when they are light and easy to pass from hand to hand, and likely to be so passed; because, in the one case, the goods may not have passed through many hands, and the proof to justify the possession may, therefore, be more simple and easy ; but in the latter case, the goods may, very probably, have come to the accused through many persons, and their transit, from the smallness of their nature and value, be much more difficult to be proved. 1 Roscoe Crim. Ev., 18; 3 Greenl. Ev., § 32.

Yet, all the cases hold that the possession must be recent after the loss, in order to impute guilt; and this presumption is founded on the manifest reason, that, where goods have been taken *705 from one person and are quickly thereafter found in the possession of another, there is a strong próbability that they were taken by the latter. This probability is stronger or weaker in proportion to the period intervening between the taking and the finding; or it may be entirely removed by the lapse of such time as to render it not improbable that the goods may have been taken by another and passed to the accused, and thus wholly destroy the presumption.

In prosecutions for larceny of chattels like that in this case, it has been well held, that after the lapse of such a period of time as in this ease, the mere fact that the chattels were found in the possession of the accused, created no presumption of criminality; and that such possession, without other evidence of any kind to establish the charge, is not even sufficient to put the party on his defense. 1 Rex v. Adams, 3 C. & P., 600; 3 Greenl. Ev., § 32; State v. Williams, 9 N. C., 140 .

We recognize the soundness of this rule, and accordingly are of opinion that the first and fourth instructions, asked on the part of the accused, should have been granted.

The judgment is, therefore, reversed, and a new trial awarded. ■ Rex v. Partridge, 7 C. & P., 551; State v. Bennett, 3 Brevard, 514; Comst., 692; Cockin’s case, 2 Lewin C. C., 235; State v. Jones, 3 Dev. & Batt., 112; Rex v. Adams 3 C. & P., 600; Hall’s case, 1 Cox C. C., 231; Regina v. Cruttenden, 6 Jur., 267; Anon, 7 Monthly Law Mag., 58; 2 Russell on Crimes, 123, 124, 125; 2 East P. C., 656; 1 Phil. on Ev., 168; 2 Hale, 289; 2 C. & P., 459; State v. Iredell, 9 Iredell, 140; Warren v. State, 1 Iowa R., 106; State v. Floyd, 15 Mo., 349 ; Archbold Cr. Pr. & Pl., 397, et seq.; 4 Stark. Ev. 841; Wharton Am. Cr. Law, 728; Bishop Cr. Procedure, 696, et seq.; Hughes v. State, 8 Humph., 75 ; Hall v. State, 8 Ind., 439 .

See note i p. 704 supra.

The first two points decided in this case are more fully discussed in the case of Dyson, 26 Miss. R., 362 . Infra, p. 710.