whose guilt consisted in the latter; while on the other hand justice often failed the other way, a party clearly guilty of receiving stolen property being erroneously indicted for larceny (g). This imperfection in our criminal law was remedied by the 11 & 12 Vict. c. 46, s. 3, which allows counts for larceny to be joined with counts for receiving the stolen goods with a guilty knowledge of the theft (h). So where a person is found dead and plundered of his property, the subsequent possession of a portion of it may induce a suspicion of murder against a party whose real crime was robbery (i).

possession of

§ 205. There is one species of real evidence which, Presumption of from its frequent occurrence and the stress usually laid larceny from on it, deserves a more particular consideration; namely, stolen property. the presumption of larceny drawn from possession by the accused of the whole or some portion of the stolen property. Not only is this presumptive evidence of delin- Sometimes quency when coupled with other circumstances; but shifts the burden of proof. even when standing alone is in many cases considered to raise a presumption of guilt sufficient to cast on the accused the onus of shewing that he came honestly by the stolen property, and if he fail in so doing, warrant the jury in convicting him as the thief. This presumption is not only subject to the infirmative circumstances attending real evidence in general, but, from its constant occurrence, and the obvious danger of acting indiscriminately upon it, has, as it were, attracted the attention of the judges, who have endeavoured to impose some practical limits to its operation in cases where it constitutes the only evidence against the accused. And, first, it is clearly established that in order to put the accused on his de

(g) See R. v. Collier, 4 Jurist, 703.

(h) See also 14 & 15 Vict. c.

100, sect. 12.

(i) See R. v. Downing, Wills, Circ. Evid. 137, 3rd Ed.

For this purpose fence his possession of the stolen property must be possession must be recent. recent (k); although what shall be deemed such must be determined by the nature of the articles stolen; i. e. whether they are of a nature likely to pass rapidly from hand to hand, or of which the accused would be likely, from his situation in life or vocation, to become innocently possessed (1). A poor man, for instance, might fairly be called to account for the possession of articles of plate, jewels, or rare and curious books, after a much longer lapse of time than if the property found on him consisted of clothes, or articles of food suitable to his condition in life, tools proper for his trade, &c. In the first reported case on this subject (m), Bayley, J., directed an acquittal, because the only evidence against the prisoner was that the stolen goods, (the nature of which is not stated in the report,) were found in his possession after a lapse of sixteen months from the time of the loss. Where, however, seventy sheep were put on a common on the 18th of June, but not missed till November, and the prisoner was in possession of four of them in October, and of nineteen more on the 23rd of November, the same judge allowed evidence of the possession of both to be given (n). In the subsequent case of R. v. Adams (o), where the prisoner was indicted for stealing an axe, a saw, and a mattock, and the whole evidence was that they were found in his possession three months after they were missed, J. Parke, J., directed an acquittal. And in a more recent case of R. v. Cruttenden (p), where a shovel which had

(k) 2 Stark. Ev. 614, 3rd Ed.; 2 East, P. C. 657; R. v. Cockin, 2 Lew. C. C. 235; and the cases cited in the following notes.

(1) 2 Gr. Russ. 123, 124; R. v. Partridge, 7 C. & P. 551; R. v. Cockin, 2 Lew. C. C. 235, n.

(m) Anon. 2 C. & P. 459. (n) R. v. Dewhirst, 2 Stark. Ev. 614, note (e), 3rd Ed. (0) 3 C. & P. 600.

(p) Kent Sp. Ass. 5 Vict.; 6 Jur. 267, and MS.

been stolen was found about six or seven months after the theft in the house of the prisoner, who was not then at home, Gurney, B., held, that on this evidence alone, the prisoner ought not to be called on for his defence. In R. v. Partridge (q), however, where the prisoner was indicted for stealing two "ends" of woollen cloth, (i. e., pieces of cloth consisting of about twenty yards each,) which were found in his possession about two months after they were missed; on its being objected that too long a time had elapsed, Patterson, J., overruled the objection, and the prisoner was convicted. Afterwards, in R. v. Hewlett (r), a prisoner was indicted for stealing three sheets, the only evidence against him being that they were found on a bed in his house three calendar months after the theft. On this it was objected by his counsel, on the authority of R. v. Adams, that the prisoner ought not to be called on for his defence; but Wightman, J., said, that it seemed to him impossible to lay down any definite rule as to the precise time which was too great to call on a prisoner to give an account of the possession of stolen property; and that although the evidence in the actual case was very slight, it must be left to the jury to consider what weight they would attach to it. The prisoner was acquitted. In R. v. Moore (s), where a mare which had been lost on the 17th of December was found in the possession of the prisoner between the 20th of June and the 22nd of July following, and there was no other evidence against him, Maule, J., held the possession not sufficiently recent to put him on his defence. In dealing with this subject, it is to be remarked that the probability of guilt is increased by the coincidence in number of the articles stolen with those found in the possession of the accused, the possession of one out of

And exclusive.

a large number stolen being more easily attributable to accident or forgery than the possession of all (t).

§ 206. But in order to raise this presumption legitimately the possession of the stolen property should be clearly traced to the accused, and be exclusive as well as recent. The finding it on his person, for instance, or in a locked-up house, room, or box of which he kept the key, would be a fair ground for calling on him for his defence; but if the articles stolen were only found lying in a house or room in which he lived jointly with others equally capable with himself of having committed the theft, or an open box to which others had access, no definite presumption of his guilt could be made (u). An exception is said to exist where the accused is the occupier of the house in which stolen property is found (x), who, it is argued, must be presumed to have such control over it as to prevent anything coming in or being taken out without his sanction. As a foundation for civil responsibility this reasoning may be correct; but to conclude the master of a house guilty of felony, on the double presumption, first, that stolen goods found in the house were placed there by him or with his connivance, and secondly, that he was the thief who stole them, and there are no corroborating circumstances, is certainly treading on the very verge of artificial conviction (y).

(t) 2 Gr. Russ. 124, note (ƒ); per Erle, J., in R. v. Brown, Kent Sum. Ass. 14 Vict. MS.

(u) 2 Stark. Ev. 614, 3rd Ed.; Rosc. Crim. Ev. 19, 3rd Ed.

(x) 2 Gr. Russ. 124, note (g). (y) "Il y aurait injustice flagrante à réputer complice d'un vol celui chez qui l'objet volé serait trouvé, ainsi qu'on le faisait à Rome

pour la réparation civile du délit. Présumer la culpabilité, à raison des circonstances qui peuvent n'être que fortuites, c'est là une marche grossière, qui appartient à l'enfance du droit pénal." Bonnier, Traité des Preuves, § 675. See also Hume's Crim. Law of Scotland, vol. 1, p. 111.

tion carried too

§ 207. Indeed, there can be no doubt that, in prac- This presumptice, the legitimate limits of the presumption under con- far in practice. sideration are sometimes overstepped. "Nothing," remarks Bentham, "can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances: nothing more inconclusive, supposing it to stand alone. Receptacles may be contained one within the other, as in the case of a nest of boxes: the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house e; the house in a field. Possession of the jewel, actual possession, may thus belong to half-a-dozen different persons at the same time and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit (z)." It is in its character of a circumstance joined with others of a criminative nature that the fact of possession becomes really valuable, and entitled to consideration, whether it be ancient or recent, joint or exclusive. But, whatever the nature of the evidence, the jury must be morally convinced of the guilt of the accused, who is not to be condemned on any artificial presumption or technical reasoning, however true and just in the abstract.

:

§ 208. When the case against the accused is suffi- Explanation of possession by ciently strong to warrant the calling on him for his the accused. defence, the credit due to any explanation he gives of the way in which the stolen property came into his possession, whether that explanation be supported by evidence or not, is altogether for the consideration of the jury. And here it is necessary to point attention to the important case of R. v. Crowhurst (a). That was an indictment for larceny, tried before Alderson, B., who thus directed the jury-"In cases of this na- | (a) 1 Car. & K. 370.

(z) 3 Benth. Jud. Ev. 39, 40.