Davis vs. The People, 1 Park. Crim. Rep. 447

By the Court, Johnson, J. — The rule that where goods have been stolen and are immediately or very soon thereafter found in the possession of a person, it is prima facie evidence that such person was guilty of the larceny, has never been doubted. It is said, however, that mere recent possession, independent of the conduct and declarations of the accused, or of his silence, is very imperfect evidence of guilt, as the apparent possession may have resulted from the malicious act of another (1 Starkie Ev. 513, 514.) In the case of Commonwealth v. Willard, (1 Mass.

Rep. 6,) where the indictment was for shop breaking and stealing goods, and a part of the goods stolen were found in the possession of the prisoner, Sedgwick, Justice, in his charge to the jury, stated the rule to be that the proof of the possession was presumptive evidence not only that he stole the whole of the articles taken from the shop, but also of his breaking and entering, as alleged in the indictment. But in that case, it appears that the prisoner refused to give any account of how he came by the goods. In The People v. Frazier, (2 Wheeler's Cr.

Cas. 35,) which was an indictment for burglary and larceny, it was held by the Recorder that possession of the goods was presumptive evidence of the larceny, but not of the burglary. The rule is laid down in Cowen & Hill’s Notes, 432, in accordance with the case in Massachusetts, and it is there said that it is presumed the case of The People v. Frazier was decided hastily. Neither of the cases cited — and they are the only ones I have been able to find where the question here involved has been passed upon — appears to have been much considered, or is of any great weight as authority.

It is certainly extending the rule of presumption to a great length, to make the clearest case of possession, even where the accused gives a false account, or refuses to give any account whatever, of the manner in which he came by the stolen property, evidence not only of the larceny but of the burglary also. The two crimes are not necessarily connected. The larceny may be committed by one, and the burglary by another. There can be no doubt that immediate possession would be competent evidence to go to the jury in connection with other circumstances, to make out the charge of burglary.

But that it is of itself sufficient to raise the presumption of anything beyond the larceny can not, I think, be maintained, upon authority or sound reason. Where a person is charged with the offence of larceny alone, unless the property is clearly traced to him and his possession is shown to be exclusive as well as recent, the presumption that he took it feloniously does not arise. (Best on Presumptions, 307; 22 Law Lib. 181.) Finding property in a house to which others have access, where no other possession is shown, is not sufficient to raise the presumption against the owner or chief occupant.

Other circumstances must be shown. (C. & H. Notes, 426, 7.) And it seems to me in cases where a burglary is connected with a larceny, mere possession of the stolen goods without any other evidence of guilt ought not to be regarded as prima facie or presumptive evidence of the burglary.

I .am of opinion, however, that in a case where goods have been feloniously taken by means of a burglary and they are immediately or soon theieafter found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account, of the manner in which he came to the possession, proof of such possession and guilty conduct is presumptive evidence not only that he stole the goods but that he made use of the means by which access to them was obtained.

There should be some evidence of guilty conduct besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of the larceny. In the present case there is no evidence of any guilty conduct whatever. There is great room for doubt whether the prisoner ever had the goods in his actual custody. True, they were found in his trunk, and if it had been shown that the goods were locked up in it, and the prisoner was in possession of the key, a strong presumption would be raised that he put them there and claimed the possession. .

But there is nothing to connect him with the goods at all, except the fact of their being found in the trunk by the officers. The trunk was not in the prisoner’s custody, but in the midship of a canal boat, in which boat other persons resided and to which any one might have access. The trunk was brought to the boat by the prisoner in the morning, as he informed the persons on the boat, and the witness by whom this is proved testifies that the trunk was locked when she saw it there, about nine.o’clock in the morning.

It is not shown that the prisoner opened the trunk after he first brought it there, or that he went to it for any purpose. He left the boat before or about noon. The officer who discovered the goods first saw the trunk some time in the afternoon of the same day, or the day after the prisoner left the boat. It then bore unmistakeable evidence of having been broken open by violence. The officer testifies that the lock appeared to have been broken by a hammer or axe, and that a portion of it was lying on the floor of the boat near the trunk and the trunk had been fastened together by nailing.

Only a small portion of the goods stolen were in the trunk. It seems to me the law will scarcely presume that the prisoner broke his own trunk open, until it is shown that he had no key to it; especially when it is not in his actual possession when found in this condition, but is in a situation where others might readily do it. This is scarcely the kind of possession which the law contemplates, in order to raise the presumption even of a larceny.

The fact that a portion of the goods were found in the prisoner’s trunk tinder such circumstances, is little if any stronger than it would have been had they been found in some other part of the boat.

And even admitting that the jury were warranted in finding, as a question of fact, that the goods were found in the prisoner’s possession, still I am of opinion the judge should have instructed them that possession alone of that character was not sufficient to raise the presumption that possession was obtained by means of a burglary committed by the prisoner. 1 On this ground, I am of opinion the conviction and sentence should be reversed, and a new trial granted. Judgment reversed.