
    Hughes vs. State.
    A recent possession of stolen goods makes out a 'prima facie case of guilt, and a, conviction must follow in the absence of explanatory or contradictory proof.
    Hughes was indicted in the circuit court of Williamson county, for larceny. The indictment charged that he stole the horse and saddle of Thomas Banks, on the 17th day of September, 1846, and the plea of not guilty having been received, a jury was empannelled under the direction of judge Maney, to try the case at the March term, 1847.
    The evidence, so far as it is necessary to exhibit it, shows that the prosecutor went to a camp meeting, in the county of Williamson, and as he rode up, he saw Hughes and Brown together. He tied his horse to a tree, a little before sun down, shortly afterwards he went to see his horse, and he was not to be found, and the saddle was also gone. He did not see Hughes that night after he missed his horse, nor did he see Hughes the next morning, which was Saturday morning. About ten days afterwards, he found the horse in the possession of John Farmer. He found his saddle in the possession of defendant, who stated that he swapped for it, and also the horse. Hughes made several contradictory statements in regard to the-mode he got the horse and saddle. Farmer testified that he got the horse of the prosecutor from Hughes, late on Tuesday evening. Hughes stated that he had swapped for the horse and saddle with a man by the name of White, from Georgia.
    There was evidence involving contradictions of statement and inconsisteritcies in conduct of defendant.
    
      The defendant introduced Brown, who was with him, drinking, on the evening prosecutor got to the camp-ground. He stated that he was with Hughes on Monday evening, that he had .a bottle of whiskey; Hughes, and a stranger to witness, were talking about swapping horses, and after some talk, it was agreed that they should turn the horses tails together and leave the rigging on each, and that Hughes should take the stranger’s horse and rigging, and the stranger should take Hughes’ horse and rigging. This agreement was executed, and they exchanged, and the stranger departed with the horse got from Hughes.
    The judge charged the jury, “that the indictment charged the defendant with stealing a gelding and a saddle, and it was for the jury to say, whether the defendant was guilty of stealing either of those articles; that he might be found guilty as to one, if the evidence justified it, and not guilty as to the other.
    If the jury should not be satisfied that the horse and saddle, or at least one of them was stolen from Thomas Banks, as described in the indictment, then they should return a verdict of not guilty, but if they should be'fully satisfied they were so stolen, then it became important to ascertain whether those articles, or either of them were found in possession of the defendant; and if so, whether he has accounted satisfactorily for that possession: That when a larceny has been committed, and the stolen goods are found shortly thereafter, the law presumes that he is the thief in whose possession they are found. That this was an old rule of law, and indispensable to the administration of the criminal law in cases of larceny. In all cases then, where nothing more appears than that the goods were stolen, and that they were shortly thereafter found in possession of the defendant, the presumption interposes with the full authority of law, and demands the conviction. In such case the jurors have no right to doubt, but it becomes their duty to return a verdict of guilty; And it is the duty of the court to pronounce the sentence of the law. That this presumption was not conclusive of guilt, hut was only a presumption, and of course yielded to sufficient opposing testimony whenever it should be offered. That this presumption was of universal application in cases of larceny, and that where a defendant is able to prove a high moral character, he might oppose his character to the presumption of which we have been speaking; and if, in such case, the jury before whom he is tried, should believe, notwithstanding the presumption from the defendant’s character alone, that he was not guilty, it would of course be their duty to acquit him. On the contrary, where the defendant introduces no evidence of character, nor any other evidence, which, in the opinion of the jury, may be sufficient to rebut the presumption, that presumption must remain and be decisive of the casé.
    The court called the attention of the jury to the evidence of. the witness, Brown, stating there was a remarkable circumstance connected with it, that had not been remarked on at the bar, which was, that he does not state that the horse he says the defendant swapped for was the horse of the prosecutor, nor- does he say he knew the horse of the prosecutor, nor was he asked on the examination as to his knowledge on those points. But if the jury should believe that it was the same horse, and that the defendant got the prosecutor’s horse by swapping, then the defendant has sufficiently accounted for the possession, if he had possession to destroy the presumption. That in case the defendant has introduced evidence for the purpose of accounting for his possession, how far he has succeeded in doing so satisfactorily, is a question for the jury only. If the jury should be satisfied that the facts of the case are such, then the presumption of law arose. Yet if they should also think the evidence is such, notwithstanding the presumption as to raise a rational doubt of the guilt of the defendant, then it would be their duty to acquit him. That if the jury should be satisfied that the defendant is guilty, as charged in the indictment, they would fix his term of imprison-men in the penitentiary for some period, not less than three nor more than ten years.”
    The jury found him guilty, and he was sentenced (a motion for a new trial having been made and overruled) to four years confinement in the penitentiary. From this judgment he appealed.
    
      Foster and Venable, for the plaintiff in error.
    
      Attorney general,
    
   McKinney, J.

delivered the opinion of the court.

The errors supposed to exist in this case, are in the charge of the circuit' judge to the jury.

1st. His honor stated, “that when a larceny has been committed, and the stolen goods are found shortly thereafter, the law presumes he is-the thief in whose possession they are found. That when nothing more appears, than that the goods were stolen, and that they were shortly thereafter found in possession of the defendant, the presumption interposes with the full power of law, and demands a conviction. That in such case the jurors have no doubt, but it becomes their duty to return a verdict of guilty. That this presumption is not conclusive, and of course yielded to sufficient opposing evidence whenever it should be offered,” &c.

We think his honor has laid down the rule in strong language, but we cannot, for this reason, reverse the judgment. Taking the entire charge, the principle is correctly stated; greater force or efficacy is not given to the legal presumption than in such case properly belongs to it. The law has defined the nature and amount of evidence which shall make a prima facie case of guilt. The burden of proof is cast upon the defendant, and if unexplained, either by direct evidence, or by the attending circumstances, or by the character and habits of life of the defendant, or otherwise, the presumption of law becomes conclusive that' his possession is' a guilty possession. This presumption talies the place of plenary proof; in such case no doubt can exist, and the jury are bound to find in favor of the presumption. We cannot control or dictate to the circuit judges the tone or language of their charges: we can only determine whether legal principles have been correctly announced.

2d. “The judge called the attention of the jury to the evidence of the witness, Brown, stating there. was a remarkable circumstance connected with it, that has not been noticed at the bar, which was, that he does not state that the horse, he says the defendant swapped for, was the horse of the prosecutor ; nor does he sáy he knew the horse of the prosecutor; nor was he asked on his examination as to his knowledge .on these points.”

This was not charging upon the facts, as is argued for the plaintiff in error. The judge may “state the evidence,” if in the exercise of his discretion he deems it necessary or proper to do so. And in doing so, we think, it is within the legitimate scope of his province to point out fairly and direct the attention of the jury to discrepancies in the testimony of witnesses, or to the omissions of material facts which may justly lessen, or destroy the force or effect of their evidence. This may not unfrequently be as necessary to the protection of the innocent as to the punishment of the guilty. And the right to “state the evidence,” if restricted to narrow limits, would be of no material'use. We think there is no error in this record, and therefore affirm the judgment of the circuit court.  