
    The State v. Kennedy, Appellant.
    
    1. Criminal Law : larceny from dwelling. Larceny committed in a dwelling- house is grand larceny without reference to the value of the property stolen. R, S., sec. 1309.
    2. -: burglary and larceny : practice, In a prosecution for burglary and larceny, the defendant may be acquitted of the one and convicted of the othei'.
    3. -: INSTRUCTION : RECENT POSSESSION OP STOLEN PROPERTY : presumption. An instruction that one found in the possession of . property recently stolen is presumed to be the thief, and if he fails to account for his possession in a manner consistent with his innocence, the presumption becomes conclusive against him, is properly given in a case where there is no evidence as to the good character of the defendant.
    
      Appeal from 81. Louis Court of Appeals. ■
    Affirmed.
    
      
      Bobt. W. Goode for appellant.
    If defendant is guilty of larceny it is only petit larceny, as the property lost was not worth over fifteen dollars, and the alleged larceny was not committed in a dwelling house, but in a car driver’s room over a saloon., R. S., secs. 1297, 1309. The instruction in regard to> possession of stolen property as presumptive evidence of guilt should have been given as offered by the defendant’s counsel. That given by the trial court has been condemned by this tribunal more than once. State v. Bruin, 34 Mo. 540 ; State v. Gray, 37 Mo. 463 ; State v. Bobbins, 65 Mo. 443 ; State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390.
    
      B. G. Boone, Attorney General, for the state.
    It is admitted, on the part of the state, that the evidence was not sufficient to sustain the charge of burglary. The charge of larceny was sufficiently established to justify the verdict. The larceny having been committed in a dwelling house, the value of the goods taken is immaterial. R. S., sec. 1309 ; State r>. Butterfield, 75 Mo. 297 ; State r>. Brown, lb. 317 ; State v. Bruffey, 79 Mo. 389. The court of appeals wns authorized in reversing as to the burglary, and affirming as to the larceny. State v. Alexander, 56 Mo. 131; State v. Owens, 79 Mo. 619.
   Norton, J.

Defendant was indicted in the criminal court of the city of St. Louis for burglary and larceny, committed in the dwelling house of one James Renn. He was tried and convicted of both burglary and larceny, and his punishment assessed at four years imprisonment for the burglary, and three years for the larceny. On defendant’s appeal to the St. Louis court of appeals, the judgment was reversed as to the burlary and affirmed as to the larceny, and he brings the cause here by appeal.

It being conceded by the state that the evidence was not sufficient to sustain the conviction of deiendant for burglary, the only question for determination presented by the record is whether his conviction for grand larceny was proper, it being admitted that the coat he was convicted of stealing was of less value than thirty dollars. The evidence in the case shows that the larceny was committed in a dwelling house, and this being so, by virtue of section 1309, Revised Statutes, as construed by this court in the cases of State v. Brown, 75 Mo. 317, and State v. Butterfield, 75 Mo. 297, the offence is grand larceny, without reference to the value of the property stolen. The cases of State v. Owens, 79 Mo. 619, and State v. Alexander, 56 Mo. 131, fully warranted the action of the St. Louis court of appeals in reversing the judgment as to burglary and affirming it as to the larceny.

There being no evidence in the case as to the good character of the defendant, but on the contrary evidence showing that his character was not good, the instruction given as to the presumption arising from the recent possession of stolen goods is fully warranted by State v. Kelly, 73 Mo. 608.

Finding no error in the record the judgment is affirmed.

Henry, C. J\,

Dissenting. — I do not concur. The court instructed the jury that one found in the possession of property, recently stolen, is presumed to be the thief, and, if he fails to account for his possession, in a manner consistent with his innocence, the presumption becomes conclusive against him. I do not think that this is, or ever was, the law, or ever ought to be.  