
    George Methard v. The State of Ohio.
    • 1. In an indictment for burglary charging the crime to have been committed “ on the sixteenth day of March, in the year of our Lord one thousand eight hundred and sixty-nine, in the night season of the same day, to wit, about the hour of two o’clock at night,” the allegation as to tiine is sufficiently definite and certain.
    2. The fact that a party has been indicted, tried, and acquitted in one county, on a charge of burglary and larceny committed therein, is not a bar to an indictment against the same party, in another county, charging a burglary in the latter county.
    3. The facts that a building was burglariously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury, and with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny. But the facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, do not, alone, raise a presumption of law that he is guilty of ' both the burglary and larceny.
    Error to the court of common pleas of Greene county.
    • At the November term, 1869, of the court of common pleas of Greene county, to wit, on November 9th, an indictment, containing two counts, was presented against George Methard and Franklin Davis. The first count charged them both with the commission of a burglary “ on the sixteenth day of March, in the year of our Lord one thousand eight hundred and sixty-nine, in • the county of Greene aforesaid, in the night season of the same day, to wit, about the hour of two o’clock at night,” in breaking and entering the smoke-house of William Johns, there sitnate, with intent to steal, etc. The second count charged Methard with the commission of the burglary, and Davis with aiding, abetting, etc.
    Methard moved to quash the indictment, because (1) it did not appear with sufficient certainty when the alleged offence was committed, and (2) joint and several offences were improperly joined in the indictment.
    
      This motion was overruled, and exception taken; and both defendant pleaded not guilty. Thereupon, by leave of the court, a nolle prosequi was entered as to the second count.
    A trial was had upon the first count, and Davis was acquitted and Methard convicted; and, after overruling his motion for a new trial, on the ground, among others, that the court erred in charging the jury, and in refusing to charge as requested, judgment was entered on the verdict.
    . It appears from the bill of exceptions that, on the trial, evidence having been given, on the part of the State, tending to prove the burglary as charged, and that nine hams, nine shoulders, and eleven sides of meat were .taken and stolen from the smoke-house mentioned in the indictment, and that eight of the hams and the nine shoulders and eleven sides were, on the next day after the burglary, sold and delivered •by the defendants to several persons in Dayton, in Montgomery county, the defendants offered in evidence a record of the court of common pleas of Montgomery county, showing that at the April term, 1869, of that court, to wit, on April 3 Oth, an indictment had been presented against George Methard and Frank Davis for a burglaryin Montgomery county, in breaking and entering the smoke-house of "William Johns, there situate, on the night of March 16th, 1869, with intent to steal, and for a larceny in then and there stealing eleven sides of bacon and nine hams, the property of William Johns, etc., and showing that, at the June term, 1869,, of that court, to wit, June 29th, they were tried on that indictment and acquitted. The introduction of this record was objected to by the State as incompetent .evidence, but the court permitted it to be read, subject to the instructions of the court in charging the jury. The defendants thereupon offered additional evidence, to show that the burglary charged in the indictment in the case then on trial was the same burglary and larceny for which the defendants were indicted, tried, and acquitted in Montgomery county, and to show that the de« fendants were the same persons thus charged, tried, and acquitted.
    Thereupon the defendants asked the court to charge the jury as follows : “ If the jury believes that the defendants were indicted and tried in the court of common pleas of Montgomery county, Ohio, for the same burglary charged in this indictment, and also, in the same indictment and court, for the larceny of the whole or part of the goods taken at the time of the burglary and entering of said smoke-house, which goods were carried by defendants into Montgomery county, and there disposed of and sold by them; and that the defendants were, thereupon, found (not guilty ’ by the jury in that court and case, and acquitted and discharged by the verdict and judgment therein — then the defendants cannot be convicted under this indictment; and the jury should find them ‘ not guilty.’ ”
    The court refused to thus charge the jury, but, amongst other things, did charge that “ When there has been a larceny of goods, a person found in possession of the stolen goods recently thereafter, is in law presumed to have committed the larceny; and if there was a burglary and entry of said smoke-house, in the night season, as charged, and a larceny of goods therein, and the goods stolen, or any part thereof, were found in the possession of the defendants the next day, the law presumes that they not only stole the property, but that they also committed the burglary; and it is for the defendants to show that they came honestly by the goods.”
    The court further charged the jury: “ That the acquittal of the defendants under the indictment in Montgomery county is no defence to this indictment; and the record is not competent evidence for the defendants in this case, for the purpose of proving such defence, although other portions of said record may be competent for other purposes; and the jury may leave the indictment in Montgomery county, and the acquittal of the defendants under it, out of view in this case.”
    To the refusal of the court to charge as requested, and to the charge as given, the defendants excepted; and Methard now prosecutes a writ of error to reverse the judgment against him.
    
      
      J. J. Winans for plaintiff in error:
    1. The indictment is bad for uncertainty, in alleging that the burglary was committed on the night of the 16th of March, to wit, at the hour of two o'clock at wight, etc. It does not appear whether it was two. o’clock in the morning of the- 16th or of the 17th of March, and the defendant was not, therefore, sufficiently advised to enable him to prepare his defence, and especially if his defence consisted in whole or in part of an alibi; and because, strictly speaking, there is no such hour as two o'clock at night, and an indictment that alleges- a crime at an impossible hour or time, is bad. 1 Archbold, 273, 281, note; Wharton’s Am. Crim. Law (ed. of 1857), secs. 273, 266.
    2. Admitting that the court in Montgomery county had no jurisdiction of the burglary committed in Greene county, yet the stolen goods being found in possession of the defendant in Montgomery county, that court had jurisdiction of the larceny; and the defendant’s acquittal there on the charge of the burglary and larceny is a bar to any other prosecution for the larceny. The acquittal shows that the taking of the goods was not a felonious taking — was not a larceny, and as the defendant is presumed to have broken and entered the smoke-house to take the goods that he did take, it follows that he did not enter with intent to steal, inasmuch as the taking of those goods was not larceny.
    As to the effect of adjudication generally, whether pleaded in estoppel, or ap evidence under the general issue, see 1 Starkie, 217, 237; 1 Greenleaf, secs. 522, 529, 530, 531; 10 Ohio St. 53; 2 Bouv. Dic. 465, “Res judicata,” and 585, “Things adjudged;” 6 Ohio, 406. See also Wharton, secs. 390, 565, 1615, 1812; Roscoe's Crim. Ev. 19.
    3. The court charged that the mere possession of the goods made a primá-facie case for burglary as well as larceny. This, it is believed, is not law. Wharton, secs. 729, 1605, 1606.
    
      F. B. Pond, attorney-general, for the State:
    1. There was no uncertainty in the indictment'for the bur glary. There was but one “ two ó’élooh in the night season ” of the 16th of Ma/roh, 1869.
    2. The court of common, pleas of Montgomery county had no jurisdiction of the burglary committed in Greene county. Grim. Code, sec. 121.
    Again, the Montgomery county indictment for burglary committed in that county, and a larceny “ then and there,” fixes the larceny at a “smoke-house” in Montgomery county. Wharton, 192, 614; Breese v. The State, 12 Ohio St. 151.
    If the court in Montgomery county had jurisdiction of the larceny, and the accused had been acquitted of the larceny on the merits, this acquittal would have been no bar to this indictment for burglary. 2 Phillips' Ev. (3d ed.) p. 26.
    3. The charge of the court would seem to be within the authority presented by counsel for plaintiff in error. Wharton, 1605.
   Brinkebhoff, C..I.

In the.decision of this case the following points were ruled by the court:

1. An indictment for burglary, charging that the crime was committed “ on the sixteenth day of March, in the year of our Lord one thousand eight hundred and sixty-nine, in the county of Greene aforesaid, in the night season of the same day, to wit, about the hour of two o’clock at night.” The allegation as to the time is sufficiently definite and certain, — the night of the sixteenth of March being the night, or season of darkness, which immediately follows the sixteenth day of March, and which, in our latitude, includes two o’clock in the morning of the following day.

2. The fact that a party has been indicted, tried, and acquitted in one county, on a charge of burglary and larceny committed therein, is not a bar to an indictment, against the same party, in another county, charging a burglary in the latter county.

3. The burglary alleged was the breaking and entering a smoke-house. The evidence tended to show that the smokehouse was broken into, a number of hams stolen, and that they were found in the prisoner’s possession, and by him offered for sale the next day.

The court charged the jury that “where there has been a larceny of goods, a person found in the possession of the stolen goods recently thereafter is, in law, presumed to have committed''the larceny; and if there was a burglary and entry of said smoke-house, in the night season, as charged, and a larceny of goods therein, and the goods stolen, or any part thereof, were found in the possession of the defendant the next day, the law presumes that he not only stole the property, but that he also committed the burglary; and it is for the defendant to show that he came honestly by the goods.”

We think the court stated the doctrine too strongly. The facts that a building was burglariously entered, goods stolen therefrom, and the possession by the accused, soon thereafter, of the goods stolen, are competent evidence to go to the jury, and, in connection with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, they may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny. But we are not prepared to say that the facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, alone raise & presumption of 1cm that he is guilty of both the burglary and larceny. “Nothing 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.” And, “ 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.” Best on Presumptions, sec. 230.

Judgment reversed and cause remanded.

Scott, Welch, White, and Day, JJ.,. concurred.  