Appeal from the Fifth Judicial District.
L. Quint, for Appellant.
H. P. Barber, for Respondents.
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.
The demurrer to the indictment was properly overruled. The offense is alleged to have been committed within five hundred yards of the line of the county of Nevada, which shows the case to be within the provisions of section eighty-eight of the Criminal Practice Act, and the description of the stolen property is precise and accurate.
There was no error in refusing the third instruction requested by the defendant. That instruction would have precluded the jury from considering the effect of the defendant having conducted the witnesses to the place where the stolen property was concealed. Although that act was a confession of his knowledge where the property was concealed, and was induced by threats, yet the truth of this confession being established by the finding of the property at the place indicated, precluded the possibility that the confession was false--which is the ground of the rule excluding confessions thus obtained. (I Greenleaf's Ev. secs. 231-2.)
But the first instruction given to the jury was erroneous under the ruling in the case of The People v. Chambers (18 Cal. 283.) In that case it was decided that the possession of the fruits of a crime is a circumstance to be considered in determining the guilt of the possessor, but that this circumstance is not of itself sufficient to authorize a conviction. In the case before us the Court did not instruct the jury in direct terms that the possession of the stolen goods, unexplained, would alone authorize a conviction; but that the possession of the stolen property throws the burthen of proof explaining such possession upon the accused. If this charge could be understood as only stating that the accused was bound to explain the possession, in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, it would not be erroneous; but we cannot assume that the jury understood it in such a limited sense. Unqualified, the direct effect of the charge was to convey to the jury the idea that the possession of the stolen goods, unexplained, was of itself sufficient to authorize a conviction.
For the error in the first instruction given, the judgment must be reversed and a new trial ordered.