
    McIntire v. The State.
    Indictment for receiving stolen property. The state was permitted to introduce testimony tending to show that the person of whom the defendant had received the property, had stolen other property of the same kind, from another person, at a different time. Held, that this was error.
    APPEAL from the Decatw Circuit Court.
    
      Friday, December 25.
   Hanna, J.

The appellant was indicted, tried and convicted in the Decatw Circuit Court, for receiving stolen property.

The evidence for the state tended to show that a horse was stolen from one Mahan, in Oldham county, Kentucky, by a person there calling himself Divran, who brought the horse to Decatw county, where he passed by the name of Spencer; that the prisoner received the horse from Spencer, and sold him to one Holmes. The prisoner’s defense was, that he had purchased the horse from Spencer in good faith.

It appeared in evidence that soon after Spencer brought the horse to Decatw county, he left that vicinity; and thereupon the state was permitted, against the defendant’s objection, to prove by one Bimer, that during the week, and about the time Spencer left, another horse was stolen from the witness’s father, which was recovered by the witness from one Hopwood, in Oldham county, Kentucky.

R. C. Talbott, for the appellant.

J. W. Gordon, for the state.

This evidence was plainly inadmissible. Suppose it to have been sufficient to raise a presumption that' Spencer had stolen Bimer's horse, it was wholly disconnected with the theft of the horse received by the prisoner. The proof of that larceny did not tend to show that Spencer had stolen Mahan's horse, much less that Mclntire had received it knowing it to be stolen. It was a fact not in issue, and one which the prisoner could not have reasonably anticipated, nor was he required to meet it with evidence.

This proof may have prejudiced the defendant. That the horse had been stolen by Spencer, was a fact which the state was required to prove. In aid of the prosecution, it was attempted to show that Spencer was a thief, by proving another larceny in addition to the one alleged in the indictment, and from that proof to presume a larceny by Spencer of the horse in question. This was clearly erroneous; for another material point to be established by the state, was, that the defendant knew, at the time he received the horse, that he was stolen property. On account of the relations which existed, in this instance, between Spencer and the defendant, this knowledge may have depended upon whether Spencer was the actual thief; and that he was such could not, we think, be presumed from proof of the commission of another and distinct offense by him. See Engleman v. The State, 2 Ind. R. 91, and authorities there cited.

A new trial should have been granted.

Per Curiam. — The judgment is reversed. Cause remanded for a new trial.  