
    Charles Lohrey v. State of Mississippi.
    [45 South., 145.]
    Criminal Law and Procedure. Larceny. Possession of stolen property. Evidence. Explanations.
    
    Where a defendant, having stolen property' concealed on his person, denied its possession and silently witnessed an officer search a room and another person for it, he has no right to testify in explanation of his possession what he afterwards told others or they told him.
    From the circuit court of Harrison county.
    How. William H. Hardy, Judge
    Lohrey, appellant, was indicted, tried and convicted of grand larceny, sentenced to the penitentiary for two years, and appealed to the supreme court.
    The opinion of the court states the facts.
    
      J. H. Mize, and T. A. Hardy, for appellant.
    If the testimony of the appellant is to be believed, he committed no crime, but was the lawful custodian of Wallace’s money on the occasion in question. Accordingly appellant had the right to prove every fact favorable to himself and have the jury pass on the evidence. Of course, if the testimony of the injured party, Wallace, is to be believed, the right result was reached, but, in considering Wallace’s testimony, the jury should have been allowed to consider at the same time the testimony of the appellant, strengthened by everything to which he was entitled.
    Certainly one accused of larceny and found in possession of the alleged stolen property, is entitled on his trial to give in evidence statements made by him to other parties, before he was accused of the crime, in the absence of the owner of the property, for the purpose of explaining his possession. This the appellant offered to do, but tbe court below declined to permit the same in evidence. This constituted error. Jones v. State, 30 Miss., 653; Chambers v. State, 62 Miss., 108; Foster v. State, 52 Miss., 695; Payne v. State, 57 Miss., 348; Hodges v. Slate, 41 Tex. Grim. Hep., 229; Commonwealth v. Rowe, 105 Mass., 590; White v. State, 2 Am. & Eng. Ann. Gas., 302; Wa/re v. Slate, 62 Mo., 597; Underhill on Crim. Ev., § 302.
    
      George Butler, assistant attorney-general, for appellee.
    Appellant contends that tbe court below erred in refusing to permit bim to prove statements made to third persons as.to bow be came into possession of tbe money. As a matter of fact, however, he really was allowed to prove bis acts and to explain bis possession. He testified that be showed tbe money to tbe woman, stating to her that tbe money belonged to Wallace; and that be subsequently showed tbe money to different persons mentioned. It is true that be was not permitted' to state that be had been invited to go to another bouse, and that be pulled out tbe money and gave as bis reason for not going that be- bad tbe money for safe keeping. Tbe court in tbe absence of tbe jury ruled this to be incompetent, but tbe record shows that appellant received the full benefit of tbe evidence before tbe jury.
    Tbe silence of tbe appellant, when found with tbe.money upon bim, and while tbe officer was searching tbe woman found in tbe room with bim, was a circumstance available in evidence against bim as showing a consciousness of guilt. Wigmore on Evidence, § 1781, note 4.
   Calhoon, J.,

delivered tbe opinion of tbe court.

This case has heretofore been affirmed without writing. A suggestion of error is filed, which seems to insist that tbe court should write when the statute does not require it. Accordingly, out of deference to counsel, we do write.

Without going into all the details of this case, which overwhelmingly show guilt as charged, it need only be said that a man named Wallace and the defendant seemed to be having their own peculiar enjoyment in bawdy houses and saloons. In one of these houses of ill fame Wallace discovered that three twenty dollar bills had been stolen from him, and so he walked out without saying anything and got an officer, and brought the officer into the room where the appellant was with a woman. The officer asked the woman and the appellant if they had the money, and they said they did not have it, whereupon the officer searched the room, and afterwards searched the person of the woman. He then searched the appellant and found the money — two twenty dollar bills of the sixty dollars in one place on his person, and another twenty dollars among some matches that he had in his pocket. It will be noted that here was a denial of’having the money, with no pretense of any explanation of the recent possession. After the money was found on him, the appellant made explanation that Wallace had given him the three twenty dollar bills for safe-keeping. •

During the trial appellant, being on the stand, was asked what he did with the money while he was in the house, and answered that he showed it to two women, and also testified that a woman and another man invited him to go to another house, and he said this woman was in Mobile, and he had tried by telephone to get her present in court as a witness. All this was given without objection. It will be noted that no application had been made for a continuance, and no explanation of where the other man was, or who he was, and it appears that the woman, not named, who invited him to go to another house was in Mobile, and he testified that he showed the money to them. He was then asked, which is the exact point, why he showed it to them. Thereupon the jury was retired, and we have the following words in the record: “ Jury retired, and counsel for defendant states he expects to prove by the witness that after he had delivered the horse (of defendant) he returned to the house -where Wallace was, and a woman from another house came to this house and requested defendant to go to her house ” — this not being in the presence of Wallace; and then he proceeds to testify that he, “ the defendant, pulled out the sixty dollars, and said he had received it from Wallace for safe-keeping, and said he could not go, and showed the money, and stated that Wallace had turned the money over to him to keep for him, and he had to stay there.” The court held this evidence not competent. The jury were then brought into the court room, and on the record it appears that the defendant stated, without objection, all he had to say in reference to Wallace’s having given him the money for safe-keeping, and also that he had showed it to these people ” — meaning the man and woman.

If there was any proper basis for the objection to the ruling of the'court as mentioned, it is clear that it was cured by testimony previously and subsequently given. But the ruling of the court was correct. His explanation of his recent possession by verbal act was not made until after denial and the motive to concoct a story arose. Explanation of possession should come promptly, when it was natural that the accused should speak; otherwise, what he told others or they told him is clearly incompetent. It will not do to admit conversations to support a story so easily fabricated under the circumstances. It is inconceivable that an innocent man would first deny having the money, and then stand and see the room searched, and stand and see a woman searched, and then be permitted, after he himself was searched, and the three twenty dollar bills found concealed about his person, to introduce testimony of his conversation with others.

Suggestion of error overruled.  