
    STATE v. PAUL JATAL.
    
    May 26, 1922.
    No. 22,923.
    Possession of stolen motor — conviction of theft sustained by evidence.
    1. The 'possession and control of an -automobile -shown to have been recently stolen, -coupled with the facts and circumstances disclosed by the evidence, together with the explanation given -by defendant, held sufficient to justify a verdict finding him -guilty of the theft.
    Evidence — charge to jury.
    2. The record presents no error either in the admission or exclusion of evidence or in the instructions to the jury.
    No review on appeal when no exception at trial or on motion.
    3. Rulings to which no exception is reserved at the trial or noted in the motion for a new trial cannot be assigned as error in this court, and present no question for review.
    
      Defendant was indicted by the grand jury .of Wabasha county charged with the crime of grand larceny in the first degree, tried in the district court for that county before Callaghan, J., who denied his motions for dismissal, directed verdict and judgment of acquittal, and a jury which found him guilty as charged in the indictment. From an order denying his motion for a new trial, defendant appealed.
    Affirmed.
    
      Abraham E. Karats and John R. Palmer, for appellant.
    
      Clifford L. Eilton, Attorney General, James F. Marlcham, Assistant Attorney General and Jolm R. Foley, County Attorney, for respondent.
    
      
       Reported in 188 N. W. 284.
    
   Brown, C. J.

An automobile owned by Harold G. Cant, stored at the time in a private garage in the city of Wabasha, Wabasha county, was on the twenty-first day of May, 1921, wrongfully and unlawfully by some person or persons stolen and carried away. Defendant was subsequently indicted as a participant in the crime, and on trial duly found guilty. He appealed from an order denying a new trial.

The record presents two principal questions, namely: (1) Whether the evidence is sufficient to justify the verdict; and (2) whether there was error in the instructions of the court to the jury. We consider them in the order stated.

The fact that the automobile was stolen by some one is not questioned or in dispute .on the record. The pivotal question on the trial was whether the evidence made a case against defendant. It is wholly circumstantial, there being no direct proof that defendant was at Wabasha at the time the automobile was stolen, and no other person is pointed out as the actual thief. The crime was committed in the night time, and the car soon thereafter was taken to the city of Minneapolis where, within a few days, it was found in the exclusive possession and control of defendant. He had operated it to some extent about the city, and by some mishap ran it into a telephone pole, resulting in considerable damage to the framework of the car. He then sold it to one Swartz, who in turn sold it to a police officer of the city, in whose possession it was found and identified as the stolen automobile. No suspicion of culpability attaches by the evidence to either Swartz or the police officer; so far as shown their relation to the car was without knowledge that it had been stolen. Swartz had the automobile repaired and put in order at an expense of $125. Upon this showing the state rested its case. Defendant moved to dismiss for insufficiency of evidence, which was denied. .Whereupon, in addition to explicitly denying any and all connection with the theft of the automobile, defendant undertook to explain away the fact of his possession and control thereof.

It is settled law in this state that the unexplained possession and control of personal property shown to have been recently stolen is presumptive evidence of the guilt of the person so in possession. State v. Munroe, 142 Minn. 394, 172 N. W. 313. The question whether it is sufficient to justify conviction in the particular case is one for the jury. State v. Hoshaw, 89 Minn. 307, 94 N. W. 873. In the case at bar defendant undertook to explain his possession and to establish his good faith in the matter. In our view of the evidence given by him for that purpose, the explanation made tended to confirm rather than to rebut the inference of guilt; at least the jury were justified in so concluding.

It appears that defendant owns and operates a pool hall and a rooming house in Minneapolis; he is not a dealer in automobiles. Some three months prior to the transaction in question he purchased an automobile for his own use, and was paying therefor on the in-stalment plan. He claims to have purchased the car in question from one Palmer, and to have paid $550 as the purchase price. Palmer was a stranger to him, at least defendant testified that he had met him only on one prior occasion, at his pool room, about a year previous to this transaction. He gave North Dakota as his place of residence, and when the automobile was offered for sale to defendant North Dakota numbers were attached thereto. Palmer had no certificate or other muniment, of title, and produced to defendant no evidence of ownership other than his assertion to that effect. The transaction was closed at the office of one Marcus who drew up a formal bill of sale from Palmer to defendant, which was signed and acknowledged by Palmer at the time. Defendant claims to have then paid the consideration of $550; in this he is not corroborated by Marcns nor by any other witness present at the time. The other automobile previously purchased by him was in part on credit, and at this time he was still making instalment payments on the balance due. After completing the bargain and sale, which occurred within a week from the date on which the car was stolen, defendant applied to a painter to repaint the car, the result of which would have been its probable change in appearance. But that was not done; the accident in which the cár was somewhat damaged prompted defendant to get rid of it, and he accordingly did so by the sale to Swartz for $150, a reduction of $400 in the amount he claims to have paid Palmer; the cost of repairs was $125. The sale dispensed with the necessity of the contemplated coat of paint.

This explanation was for the jury, and they rejected it as not a good faith disclosure of the facts. We find no sufficient reason for disturbing that conclusion. The result, therefore, with the verdict as a foundation, is that defendant was either the person who stole the automobile, or was in collusion with the actual thief, aiding and abetting him, though not personally present at the taking. In either case, and under our procedure the jury was not required affirmatively to specify, he is guilty of the crime charged. The question of receiving stolen property is not involved.

The trial court charged the jury that the unexplained possession and control of personal property, shown to have been recently stolen, is evidence of the guilt of the person so in possession, and sufficient to justify conviction if the jury is thereby satisfied beyond a reasonable doubt. The court was careful to inform the jury that the evidence of possession together with the explanation, presented matters for the consideration of the jury, not that the conclusion of guilt necessarily followed from a showing of possession. The charge taken as a whole was clear and free from objection. The contention that it was misleading and indefinite, and that the court should have enlarged upon the matter of the possession of the automobile and the explanation thereof, is without special merit. No requests for further instructions were made, and the exception found in the motion for a new trial comes too late; though by this we are not to be understood as doubting the clearness or correctness of the charge taken as a whole. State v. Zempel, 108 Minn. 428, 115 N. W. 275; State v. Henriksen, 116 Minn. 366, 133 N. W. 850; State v. Storey, 148 Minn. 398, 182 N. W. 613, 15 A. L. R. 629; 3 Dunnell, Minn. Dig. § 9798.

This covers the case and all that need be said in disposing of the appeal. Assignments of error 3, 4 and 5 present no exception reserved at the trial or in the motion for a new trial and cannot therefore be assigned as error in this court. American Engine Co. v. Crowley, 105 Minn. 233, 117 N. W. 428; 3 Dunnell, Dig. § 9726. The same is true as to assignments 7 and 8. Complaints of indefiniteness in the instructions of the court must be brought to the attention of the trial court at the trial, by a request for further instructions, otherwise they are not available in this court. 3 Dunnell, Minn. Dig. § 9798.

The evidence made the issue of the guilt of defendant one of fact for the jury, and finding no error in the record there must be an affirmance.

Order affirmed.  