Opinion
No. 29,095.
Filed June 4, 1954.
CRIMINAL LAW — Trial — Instructions — Errors — Grand Larceny — Presumption — Arising Out of Possession of Goods. — Where the Attorney General conceded that an instruction given upon the question of the presumption arising from the possession of stolen goods, placing upon defendant the burden of accounting for such possession and reciting that such presumption, if strong enough, would justify finding the defendant guilty and that the jury was sole judge of whether the explanation or other evidence given by defendant was sufficient to raise a reasonable doubt as to his guilt, was erroneous, the Supreme Court agrees with such confession of reversible error. Arthur v. State, 227 Ind. 493.
From the Posey Circuit Court, William Espenschied, Special Judge.
Kenneth Duncan was convicted of grand larceny and he appeals.
Reversed.
Lockyear Armstrong, of Evansville, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling and Richard M. Givan, Deputy Attorneys General, for appellee.
Appellant was convicted of grand larceny. The trial court gave the following instruction:
"If you find from the evidence, beyond a reasonable doubt, that the property described in the affidavit, or any portion of it, was stolen, and that such stolen property was found in the exclusive possession of the defendant, within a short time after the larceny was perpetrated, you are instructed that a presumption of fact arises from such possession and imposes on the defendant the duty and burden of explaining his possession of the said property; and if he has failed to satisfactorily account as to how he came into possession of such stolen property, there is a presumption of fact that the defendant stole the property, and this presumption may be strong enough to justify you in finding him guilty, and you, the jury, are the sole judge as to whether the explanation or other evidence given on behalf of the defendant is sufficient to raise a reasonable doubt as to his guilt."
The office of the Attorney General, with commendable frankness, concedes that the giving of this instruction constitutes reversible error. See Arthur v. State (1949), 227 Ind. 493, 86 N.E.2d 698.
We agree.
Judgment reversed.
Bobbitt, Draper, Emmert, and Gilkison, JJ., concur.
NOTE. — Reported in 119 N.E.2d 717.