attaches to the particular person charged with the commission of the offense. In cases of larceny it is, of course, essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner. "It must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot swear to the loss of the articles alleged to have been stolen from him, the prisoner must be acquitted." 3 Greenl. Ev. § 161.

In what manner may this proof be made? Must it always be direct and positive? Is it absolutely essential, in all cases, that the proof of the corpus delicti should be first established independent of the other elements of the offense? While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not essential, in all cases, that there should be any direct evidence upon this point.

Many of the cases are referred to in a note to 1 Bishop, Crim. Proc. § 1071. Some of them are cases like People v. Williams, 57 Cal. 108, where no evidence of any kind was offered upon that point. Bishop concludes the section by saying: "If we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of this fact any more than of any other. If the defendant should not be convicted when there has been no crime, so equally should he not be when he has not committed the crime, though somebody has; the one proposition is as important to be maintained as the other, yet neither should be put forward to exclude evidence which in reason ought to be convincing to the understanding of the jury.”

In State v. Keeler, the court said: "The rule should be adhered to, with the utmost and strictest tenacity, that the facts forming the basis of the offense, or corpus delicti, must be proved either by direct testimony, or by presumptive evidence of the most cogent or irresistible kind. In one of these methods the essential fact or facts must be established beyond a reasonable doubt. But if thus established, or if the jury can be or are satisfied of such

facts beyond this reasonable doubt, it matters not whether they are conducted to this result by direct or positive evidence. In other words, while the proof should be clear and distinct, it is not necessary that it should be direct and positive; for while that which is direct might be more satisfactory, less liable to deceive and mislead, this goes to its weight or effect, and by no means establishes that in no other way can the essential facts be shown with the requisite distinctness and clearness." 28 Iowa, 553.

The fact that the corpus delicti may be established by circumstantial evidence is well settled. Burrill, Circ. Ev. 680, 734; Wills, Circ. Ev. 201; Reg. v. Burton, Dears. C. C. 282; Rex v. Burdett, 4 Barn. & Ald. 122; McCullough v. State, 48 Ind. 112; Brown v. State, 1 Tex. App. 155; Roberts v. State, 61 Ala. 401; State v. Ah Chuey, 14 Nev. 92, 33 Am. Rep. 530; State v. Loveless, 17 Nev. 427, and authorities there cited.

§ 451. What may be Shown when Identity is in Question. -It is an established rule of evidence, that, "when, on a trial for larceny, identity is in question, testimony is admissible to show that other property, which had been stolen at the same time, was also in the possession of the defendant when he had in possession the property charged in the indictment." Whart. Am. Crim. L. § 50. This principle is sustained by reason as well as authority. When several articles are taken at one time, and "the transaction is set in motion by a single impulse and operated by a single unintermittent force, it forms a continuous act, and hence must be treated as one larceny, not susceptible of being broken up into a series of indictments, no matter how long a time the act may occupy." 2 Whart. Am. Crim. L. § 1817. The court of North Carolina has gone further, and allowed evidence of a different offense of the same character, and connected with that charged in the indictment, in order to show guilty knowledge, where the intent is of the essence of that charged. State v. Murphy, 84 N. C. 742; State v. Thompson, 97 N. C. 496; State v. Parish, 104 N. C. 679; 1 Whart. Am. Crim. L. § 649.

In People v. Ball, 14 Cal. 101, 73 Am. Dec. 631, the subject of the larceny was described as "three thousand dollars lawful money of the United States." The court said: "This description is not sufficient. In an indictment for larceny, money should be described as so many pieces of the current gold or silver coin of the country, of a particular denomination, according to the facts.

The species of coin must be specified. Archb. Crim. Pr. & Pl. 61; Whart. Am. Crim. L. 132." See Barton v. State, 29 Ark. 68.

§ 452. Recent Possession of Stolen Property may be Shown. In a prosecution for larceny, the fact that the stolen property is found upon the person of the defendant can always be given in evidence against him, but the strength of the presumption which it raises against the accused depends upon all the circumstances surrounding the case. Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494. In the case of State v. Hodge, 50 N. H. 510, a leading and well considered case, the supreme court of New Hampshire decided that the presumption thus raised was one of fact, and not of law; that there is no legal rule on the subject; that much depends on the nature of the property stolen, and the circumstances of each particular case; that "it is a presumption established by no legal rule, ascertained by no legal test, measured by no legal standard, bounded by no legal limits. It has none of the characteristics of law. Whether it be found by the judge or the jury, the judge and the jury must be equally unconscious of finding in it any semblance of a legal principle, however much good sense may appear in the result arrived at. Being a presumption of fact, it should, according to our practice, be drawn by the jury, and not by the court." We regard this case as well sustained by the adjudications.

There can be no doubt as a general proposition of law, that the exclusive possession of goods recently stolen is sufficient to put an accused person upon his defense. McLain v. State, 18 Neb. 154. It is not very well settled what is a recent possession. Neither is it positively established whether the presumption mentioned so often in the books and decisions, is a presumption of law or fact. Mr. Bishop contends that upon principle it is only a presumption of fact, the inference to be drawn by the jury; and the writer agrees with Mr. Bishop on this point. 2 Bishop, Crim. Proc. (2d ed.) §§ 740, 745; People v. Gassaway, 23 Cal. 51; Curtis v. State, 6 Coldw. 9; State v. Williams, 47 N. C. 194. If a presumption of law, it is only in those cases where it is manifest that the stolen goods have come to the possessor by his own act or with his undoubted concurrence. The original cases mentioned which were sufficient to raise a presumption of law are as follows: "Upon an indictment for stealing in a dwelling-house, the defendant is apprehended a few yards from the outer door with the stolen goods

in his possession." "A gentleman has his watch stolen from his fob in a crowd, and shortly thereafter it is found concealed about the person of one who can give no rational account of how he obtained it." Malone, Crim. Briefs, 396.

"Generally whenever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent upon that other to prove how he came by it; otherwise the presumption is that he obtained it feloniously." 2 East, Crim. L. 656. This was cited with approbation in the case of State v. Furlong, 19 Me. 225, and its accuracy as a general legal proposition, is sustained by the decision made in the case of Knickerbacker v. People, 43 N. Y. 177, 1 Cow. Crim. Rep. 287.

Evidence in explanation of such possession may fall short of a satisfactory explanation, and yet be sufficient to acquit. If it creates a reasonable doubt, it practically rebuts the presumption of guilt. Clackner v. State, 33 Ind. 412; Way v. State, 35 Ind. 409; Smith v. State, 58 Ind. 340.

It is well settled law that the exclusive possession of a whole or some part of stolen property by the prisoner, recently after the theft, is sufficient when standing alone to cast upon him the burden of explaining how he came by it, or of giving some explanation; and if he fail to do so, to warrant the jury in convicting him of the larceny. Such is and has been the practice of the criminal courts in this country and England, as appears by the reports and by elementary writers. Best, Presumptions, (31 Law Lib. N. S. *304). In the 5th ed. p. 292 of this work, the rule is repeated and affirmed; but the author seems disposed to limit the rule, on the authority of Bentham. 3 Bentham, Judicial Ev. 39-40.

But the reasoning of Bentham has been founded upon the idea that the possession is frequently not exclusive; but may be in many, therefore not criminative of either, and other illustrations, showing the necessity of exclusive and conscious possession, etc. See also 1 Cowen & Hill's Notes, p. 425, note 325. These are sound limitations. Wills, Circ. Ev. (4th ed.) 53, 54. Russell on Crimes says, in such case, "it is incumbent on the person so found in possession, to prove how he came by it, otherwise the presumption is that he obtained it feloniously." Russell, Crimes, (4th ed. by Graves) 337, #123; 2 East, P. C. 656. Greenleaf, in his first volume lays down the rule broadly that "possession of the fruits

of crime, recently after its commission, is prima facie evidence of guilty possession; and if unexplained, either by direct evidence, by the attending circumstances, by the habits of life and character of the prisoner or otherwise, it is taken as conclusive." 1 Greenl. Ev. (rev. ed.) § 34. In his third volume, he modifies this rule, but without any authority except a reference to Best, Presumptions. Wills, Circ. Ev. and Alison, Principles of the Criminal Law of Scotland, p. 320, and they do not sustain him.

§ 453. Evidence of other Similar Offenses.-If other criminal acts can be received, as they most certainly have been, with the sanction of the courts, for the purpose of proving the intent with which the act charged as criminal was committed, no good reason exists for excluding it in prosecutions for larceny. The intent is the vital fact to be ascertained; and other acts, plainly within one common purpose or design, have been allowed as legal evidence of it. In treason, murder, robbery, arson, embezzlement, fraud, receiving stolen goods (Copperman v. People, 1 Hun, 15, affirmed in 56 N. Y. 591) and other cases, such acts, as proof of intent, have been received, and no reason appears why larceny should not be included in the same principle.

In State v. Renton, 15 N. H. 174, Gilchrist, J., very aptly remarked: "Where a person is charged with an offense, it is important to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to be prepared to anIt is, therefore, not competent for the prosecutor to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the crime in question. Nor is it competent to show that he has a tendency to commit the offense with which he is charged." State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

swer.

454. Case of Reg. v. Thomas Considered.-One of the most eminent of the English nisi prius judges of the present day has imparted an element of distrust to this entire subject that has been of extended influence in this country, and is widely quoted as sustaining a position of great importance to one accused of crime. The decision referred to is that of Reg. v. Thomas, 9 Car. & P. 741. In that case the prosecutor gave the prisoner a sovereign to get changed, the prisoner failed to materialize with the equivalent, and the court held that he could not be convicted