
    STEVEN DILLON, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.
    
      Stolen property — identity of—presumption arising from, possession of— statement of prisoner as to how he obtained, possession — when must be proved false by prosecuting
    
    The plaintiff in error was convicted of grand larceny, for stealing a quantity of pig-iron. The agent to whom the iron was sent to be sold, testified that it bore the marks, and presented the appearance, of the iron in his possession, some of which had been taken away from the premises where it was deposited, and some from a boat, having a portion of it on board, during the night, in the early morning of which the defendant was arrested. He further testified that he identified the iron when he saw it in the following afternoon. Held, that his testimony, together with the fact that the iron was found in the defendant’s boat, upon the river, at half-past three o’clock in the morning, and his subsequent statement that he had purchased it of a canal boat captain for fifteen dollars, when it was really worth fifty-two dollars, were sufficient to justify the submission of the identity of the property to the jury.
    
      The defendant’s counsel requested the court to charge the jury, that the mere possession of the property stolen, was not prima facie evidence of the commission of the larceny by the defendant. The court declined so to charge. Held, no error. That the request must have been designed to relate to the defendant’s possession, as that had been shown by the evidence, and that such possession was so recent and so suspicious, that it was consistent with no other rational conclusion than that of guilt.
    The defendant’s counsel requested the court to charge that where a man, in whose possession stolen property is found, gives a reasonable account of how he came by it, the prosecution was required to show the account to be false. The court declined so to charge. Held, no error. That the rule only applied to those cases in which considerable time has elapsed between the taking of the property and the discovery of the fact of possession, and where a reasonable account of how the prisoner came by the property was given to those finding him in possession; and that the account, given by the defendant as to the manner in which he obtained possession of the iron, was, under the circumstances of the case, entirely unworthy of belief.
    Weit of error to the Court of General Sessions of the city of liew York, to review the conviction of the plaintiff in error of the crime of grand larceny in stealing a quantity of pig-iron.
    The facts are stated in the opinion.
    
      Peter Mitchell, for the plaintiff in error.
    
      JBenj. K. Phel/ps, District Attorney, for the defendants in error.
   Daniels, J.:

The defendant, Steven Dillon, was convicted of the crime of grand larceny, in the Court of General Sessions, and sentenced to he imprisoned in the State prison, for the term of five years. Exceptions were taken in his behalf, to the charge given the jury, and to refusals on the part of the learned recorder, to charge as requested by the defendant’s counsel. After judgment, a writ of error was issued, for the purpose of securing a review of such exceptions. The first was taken to the refusal of the court to take the case from the jury, on the ground that the description of the identity of the property, was too indefinite, vague and uncertain, to convict the defendant upon, and not sufficient in law to be submitted to the jury.

The property charged to have been stolen, was twenty-eight bars of pig-iron. And the evidence of the agent having it in charge, and who was the sole agent here at the time for its sale, was, that it bore the marks, and presented the appearance, of the iron in his possession, some of which, he testified, had been taken away from the premises where it was deposited, and from a boat having a portion of it on board, during the night, in the early morning of which the defendant was arrested. His testimony was, that he did identify the iron, when he saw it- early in the following afternoon, by its marks and looks. This, with the fact that it was found in the defendant’s boat upon the river, at half-past three o’clock in the morning, and his subsequent statement that it was bought o-f a canal boat captain for fifteen dollars, when the uncontradicted evidence was that its value was about fifty-two dollars, were sufficient to justify the submission of the question of the identity of the property to the jury. The case in this respect, was entirely different from the authority relied upon by the defendant’s counsel in support of this objection. The proof in that case did not show that the property, found in the defendant’s possession, had been stolen at all, and the witness who was alleged to be its owner, could not identify it, so as to distinguish it from the same kind of property sold to his customers residing in the same vicinity as the prisoner. While, in the present ease, the evidence of the agent showed that a larceny of the iron had been probably committed; that the quantity taken was similar to that found in the prisoner’s possession; that it had the marks and appearance of the iron in the agent’s custody; and that no other iron of that description, was, at the time, probably on deposit, or for sale in the vicinity. The proof was sufficient to render it the duty of the court to submit the identity of the property to the jury.

The comments of the court on the evidence given by the same witness, that, on being shown the iron the next day, he recognized it beyond any doubt, as being the property which had been taken away from his possession, was also excepted to. Ho request for its modification in any respect, was made on the part of the defendant. And it is certainly true, that the statement made, was fully as strong as the evidence of the witness would justify. He did not, in words, say that he recognized the property as his beyond any doubt, but it is not difficult to perceive that he intended as much as that by the statement which he made. He testified that he did identify the iron as that which he was sure he saw, the night before, on the boat at his dock. That he had received it about a week before, and knew it by its being new iron, the color of the sand used by the company that manufactured it, the shape of the pigs, and the letters upon it. That he would be pretty certain about it, without the letters, but not as certain as with them. The fair inference from his statements, was, that the iron, found with the defendant, was a part of that sent to him for sale, and which had been carried away during the preceding night. And no reason exists for supposing that he entertained the least doubt as to the correctness of his statements. They were made with a sufficient degree of positiveness, to justify the comment made upon them by the learned recorder.

The defendant’s counsel requested the court to charge the jury, that the mere possession of the property stolen, was not prima facie evidence of the commission of the larceny by the defendant. This the court refused to do, and the defendant’s counsel excepted. The request must, of course, have been designed and understood to relate to the defendant’s possession, as that had been shown by the evidence given in the course of the trial. There was no dispute as to the facts constituting that portion of the case. The larceny appeared to have been committed sometime during the night, and the property was found by the police, in the possession of the defendant and another person with him, in a small boat managed by them, at half after three o’clock in the morning. The possession, at that unseasonable hour for lawful traffic, was, within the authorities, sufficient to maintain the presumption of the defendant’s criminal agency in procuring it. It was so recent, and so suspicious, that it was consistent with no other rational conclusion, than that of guilt. “ Generally, wherever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent upon that other, to prove how he came <by it; otherwise the presumption is that he obtained it feloniously.” This was cited with approbation, in the case of the State v. Furlong (supra), and its accuracy as a general legal proposition, is sustained by the decision made in the case of Knickerbocker v. The People.

As the proposition was first stated by the court, concerning the presumption arising from the fact of recent possession of stolen' property, it was rather too decided against the defendant. For it is a presumption of fact; one which the jury may act upon, and not one which by law they are required to follow. But it was afterward qualified, and submitted to the jury in that form. The court, upon that subject, responded to the request of the defendant’s counsel, that it was presumptive evidence, and further charged, that stolen property, immediately afterward found in possession of a party, afforded the presumption that the person having the possession, had stolen it. The case was finally submitted to the jury upon that proposition, and it was as favorable to his case as the defendant had any legal right to require.

The court also declined to charge the proposition, presented by the defendants’ counsel, that where a man, in whose possession stolen property is found, gives a reasonable account of how he came by it, the prosecutor was required to show the account to be false That may be true, as to a large class of cases where considerable time has elapsed between the taking and the discovery of the fact of possession, but, to bring the case, upon this point, within the rule relied upon by the defendants’ counsel, as it is stated in the authority cited by him, it is necessary that it should appear that a reasonable account of how the possessor came by the property, should be given to those finding him in possession. In the present case, nothing of that kind was done. For, according to the evidence of the policeman who made the arrest, the defendant gave no account of his possession, until he and the other person arrested were at the police court, sometime after the arrest' had been made. The defendant himself swore that he told the policeman, at the time of the arrest, that he had bought the iron. When or where he claimed to have bought it, he did not state that he disclosed. What he said he he stated himself, gave no reasonable account of the manner in which he obtained possession of the iron, and, under the circumstances attending his detection and arrest, it was wholly unworthy of belief. Even if the proposition, as the court was requested to charge it, had been accurate, it was not raised by the evidence given in the case. Beyond that, the prosecutor cannot be required to show that the defendant’s statements are false, when given in exculpation of what seems to be a guilty possession, as long as the circumstances attending it, are such as to indicate that they are not true. The question is one for the jury, who would ordinarily acquit on the faith of them, where they appeared to be probable, but would reject them under circumstances throwing grave suspicions upon their truth. No arbitrary, unbending rule exists upon this subject, applicable to all cases of possession of stolen property. What the law requires, is, that the defendant’s statement should be credited where it appears to be probable, and consistent with the facts. While, on the other hand, the jury is not only at liberty, but it is their duty to decline to adopt and act upon it when it is inconsistent with other facts proved, tending to establish guilt, and it is suspicious and improbable in itself There is nothing in the case, from which the defendant’s conviction can be held to have been improper, and the judgment should therefore be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed. 
      
       State v. Furlong, 19 Maine, 225.
     
      
      
         2 East’s Crim. Law, 656.
     
      
       43 N. Y., 177.
     
      
       Regina v. Crowhurst, 1 Car. & Kir., 370.
     