Opinion
No. 28022.
November 4, 1929.
1. RECEIVING STOLEN GOODS. Unexplained possession of stolen property does not warrant inference that one in possession received it from another knowing it had been stolen.
Unexplained possession of stolen property shortly after commission of larceny does not warrant an inference that one in possession of property received it from another knowing that it had been stolen.
2. RECEIVING STOLEN GOODS. In prosecution for receiving stolen goods, record of another's conviction of burglary held incompetent.
In prosecution for receiving stolen goods taken from burglarized store, record of another's conviction of burglary of store held incompetent.
3. RECEIVING STOLEN GOODS. Where commission of larceny by defendant was not negatived, peremptory instruction requested in prosecution for receiving stolen goods should have been given.
In prosecution for receiving stolen goods, where burglary was proven, but commission of larceny by defendant was not negatived, peremptory instruction requested by him should have been given.
APPEAL from circuit court of Coahoma county, Second district. HON.W.A. ALCORN, JR., Judge.
Roberson Cook, of Clarksdale, for appellant.
If appellant committed larceny then it follows as a matter of law, that he did not commit the crime for which he is charged. One cannot receive stolen property from himself. One cannot steal property and be convicted of having received the same property knowing it to have been stolen.
Sartorious v. State, 24 Miss. 602; Frank v. State, 67 Miss. 125; Manning v. State, 129 Miss. 179, 91 So. 902.
The possession of recently stolen property does not raise any presumption either of fact or of law that the one found in such possession is guilty of "having received the property knowing it to have been stolen."
36 C.J. 867.
A plea of guilty or record of conviction of another party for the crime of larceny out of which a charge of receiving stolen goods, knowing them to be stolen arose, is inadmissible on trial of charge for receiving stolen property.
Kirby v. United States, 43 L.Ed. 890, 174 U.S. 47.
W.A. Shipman, Assistant Attorney-General, for the state.
The recent possession of stolen property raises the presumption and calls upon the accused for an explanation and casts upon him the burden of accounting for his possession.
Foster v. State, 52 Miss. 695; Autman v. State, 126 Miss. 629, 89 So. 265; Barrett v. State, 118 So. 727.
The appellant was convicted for receiving stolen property knowing that it had been stolen.
The burglary of a store was proven, or at least we will assume that it was, and certain articles of merchandise were stolen therefrom. Shortly thereafter the appellant and Sam Madison offered to sell some of the articles of merchandise which they then had, to Hudson, who declined to purchase, but permitted them to store the articles with him. Afterwards a coat stolen from the store was sold by the appellant, who was then alone, to Walker. The appellant stated to Hudson that he and Madison had purchased the articles from another whose name they did not disclose. Over the objection of the appellant, the state proved, by the record, that Madison had been indicted for, pleaded guilty to, and had been sent to the penitentiary for, the burglary. A peremptory instruction requested by the appellant was refused.
The unexplained possession of stolen property shortly after the commission of a larceny is a circumstance from which guilt of the larceny may be inferred, but no inference can be drawn therefrom alone that the one in possession of the property received it from another knowing that it had been stolen. Sartorious v. State, 24 Miss. 602; Manning v. State, 129 Miss. 179, 91 So. 902.
The argument for the state, in effect, is that the burglary and larceny were proven to have been committed by Madison, and the other circumstances hereinbefore-said found were sufficient to warrant the jury in believing that the appellant thereafter received the property knowing it had been stolen. The record of Madison's conviction was incompetent, Kirby v. U.S., 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890, but, if it were competent, it does not negative the participation by others, including the appellant, in the burglary and robbery. So that, assuming for the purpose of the argument that, had the commission of the larceny by the appellant been negatived, the evidence would be sufficient to support his conviction for receiving the property knowing that it had been stolen, the commission of the larceny by the appellant was not negatived, from which it follows that the peremptory instruction requested by him should have been given.
Reversed, and appellant discharged.