
    Thomas J. Brown v. State of Nebraska.
    Filed March 13, 1915.
    No. 18,671.
    1. Larceny: Possession of Stolen Property: Inference. In a prosecution for larceny, the jury, in determining the inference to be drawn from the possession of recently stolen property, should consider whether accused kept and sold it openly, where there is proof of that fact.
    2. -: -: Instruction. In a prosecution for larceny, an instruction referring directly to defendant’s possession of stolen property, and requiring the jury to consider it carefully, where there is nothing else from which the guilt of defendant could he inferred, should likewise call attention to proof, if.any, that he kept and sold the property openly. •
    
      Error to tbe district court for Cherry county: William ■ H. Westover, Judge.
    
      Reversed and dismissed.
    
    
      Walcott & Walcott and Allen G. Fisher, for plaintiff in error.
    
      Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.
    
   Rose, J.

In a, prosecution by tbe state in tbe district court for Cberry county, Tbomas J. Brown, defendant, was convicted of stealing seven cows belonging to Tbomas Byron, and for that offense was sentenced to serve in tbe penitentiary a term of not less than one nor more than ten years. As plaintiff in error be now presents for review tbe record of ' bis conviction.

Defendant was formerly • convicted of tbe same offense, but bis sentence was set aside for error in tbe proceedings. Tbe circumstances relating to tbe loss of tbe cows and to defendant’s possession thereof several months later are narrated at some length in tbe former opinion and need not be restated here. Brown v. State, 88 Neb. 411. In reviewing tbe record of tbe first conviction it was said:

“These cattle bad been openly in possession of tbe defendant for about six months. There was therefore little, if any, presumption of guilt from tbe possession of tbe stolen property.”

In tbe present record there is no evidence to sustain tbe conviction, unless tbe guilt of defendant may be inferred from bis possession, which be and bis witnesses explained as follows: In November, 1909, a man from Marsh Lake, giving tbe name of W. M. Hammers, came to defendant’s bouse and asked for dinner. During the meal Hammers mentioned that be was driving tbe cattle to Valentine to market. After dinner they were sold to defendant. On tbe night of tbe arrest defendant drove home from Arabia to inform bis wife and to get a book in which be bad written tbe name of tbe seller. He did not go into tbe bouse because bis wife, who was sick, bad gone to sleep. Tbe book ■was produced at the first trial, hut had been lost before the second. The cows described in the information were branded, but defendant did not know what the brand was. They were kept with his own cattle in an open pasture crossed by two roads. His wife testified that he bought the cows, but her previous statements indicated that she did not know about the sale. Another witness stated that a man with a bunch of cattle turned into defendant’s place early in November, 1909. After defendant’s possession had been thus explained, witnesses for the state testified there was no one named Hammers at Marsh Lake or in that vicinity. With defendant’s possession explained in the manner indicated, the trial court gave the following instruction :

“You are instructed that the possession of stolen property recently after the larceny thereof, when unexplained, may be sufficient to warrant a jury in inferring the guilt of the party in whose possession it is found. Whether such inference should be drawn is a question of fact exclusively for the jury. In this case you should carefully consider the evidence of the state as to the defendant’s possession of the stolen property, the length of time he had such possession, his explanation of the way he came into possession of the cows, as well as all the other evidence in the case, and then draw such inference therefrom as you may be convinced the evidence warrants.”

Though there was no direct evidence that defendant had stolen the cows, the instruction refers directly to his possession — the only circumstance from which his guilt could be inferred — and directs the jury to consider it carefully, without making any direct reference whatever to evidence that he had kept, and sold the animals openly. The law is that the jury, in determining the inference to be drawn from the possession of recently stolen property, should consider whether accused kept and sold it openly, where there is proof of that fact. State v. Fitzgerald, 72 Vt. 142. An instruction referring directly to'possession and requiring the jury to consider it carefully, where there is nothing else from which the guilt of accused can be inferred, should likewise call attention to proof, if any, that he kept and sold the property openly. In this respect at least the instruction cannot be approved.

Considering that there is no direct evidence of the guilt of defendant, that a considerable time elapsed before the missing animals were found in his possession, that he testified to having purchased them from a stranger, that he openly kept and sold them, and that he is entitled to the presumption of innocence, his conviction rests on inference and conjecture too uncertain to satisfy the demands of the criminal law. The weakness of the'prosecution was pointed out in the former opinion. It was not materially-strengthened when the case was retried. Por these reasons, the conviction is set aside and the prosecution is dismissed.

Reversed and dismissed.

Morrissey, C. J., not sitting.  