
    State of Kansas v. David Cassady.
    January Term, 1874.
    1. Criminal Law: Accessary: Bill of Rights. Under the statutes of this state, an accessary before the fact may be charged, tried, and convicted as though he was a principal. Such statutes are not in conflict with the provisions of section 10 of the bills of rights. [State v. Mosley, 31 Kan. 355; S. C. 2 Pac. Rep. 782.]
    2. -: Reasonable Doubt. An instruction which implies that the defendant is to liave the benefit of every doubt is properly refused. He can claim only the benefit of reasonable doubts.
    
    3. Instruction: Evidence not Preserved. Where, under an information charging a crime generally, the verdict of the jury finds the defendant guilty as an accessary before the fact, and the whole testimony is not preserved in the record, it is impossible for this court to say that there was error in refusing an instruction which apparently bears solely upon the question of defendant’s guilt as a principal.
    *4. -: Disjunctive: Error: Accessary. Where an instruction is asked which, in a disjunctive statement, presents two conditions of acquittal, and there is error in one of these conditions, the court may properly refuse the whole instruction. Whether one who outside of the state is accessary before the fact to a felony committed within the state can be punished in this state, quaere.
    
    5. Larceny: Evidence: Possession of Property. The possession of stolen property, recently after it is stolen, is prima facie evidence of guilt, and throws upon the possessor the burden of explaining such possession, and, if unexplained, may be sufficient of itself to warrant a conviction.
    6. -. While the recent possession is a circumstance pointing towards guilt, and therefore always competent as evidence, yet before, it can be deemed sufficient, standing by itself, to warrant a conviction, it must be so recent after the time of the larceny as to render it morally certain that the possession cannot have changed hands since the larceny.
    
    7. Trial: Arraignment and Plea; Waiver. Under our statutes, a failure to arraign the defendant, and have a formal plea of not guilty entered, is not such an omission and error as will entitle the defendant to a new trial, or to an arrest of judgment, when it appears that the defendant, was present in person and by counsel, announced himself ready for trial upon the information, went to trial before a jury regularly impaneled and sworn, and submitted the question of guilt to their determination.
    Appeal from Atchison district court.
    The information in this case is as follows: “S. H. Glenn, county attorney in and for the county of Atchison, state af Kansas, and in the name and by the authority of said state of Kansas, comes here into the district court of said Atchison county, on this ninth day of June, 1873, and gives the said court to understand and be informed that the defendants, George Fleming and David Cassady, late of said Atchison county, on or about the night of the twenty-second day of April, 1873, at the said county of Atchison and state of Kansas, then and there being, did unlawfully, feloniously, and burglariously, in the night-time, break and enter the store of L. Kiper & Son, in said county of Atchison, then and there situated, in which store there were at the time goods and merchandise, and valuable things, with intent to steal and commit a felony therein, and then and there, of the goods and merchandise of the said L. Kiper & Son, and from their possession, to-wit, one hundred and eighty-five mink skins, *of the value of four hundred and fifteen dollars, eight otter skins, of the value of seventy-five dollars, feloniously and burglariously did steal, take, and carry away, with intent so to break and enter said store, and to commit a felony, and steal, contrary to the form of the statutes in such case made and .provided, and against the peace and dignity of the state of Kansas.”
    A separate trial as to Cassady was had at the November term, 1873, of the district court. The verdict of the jury is as follows: “We, the jury, duly impaneled, charged, and sworn in the above-entitled cause, do, upon our oaths, find David Cassady guilty of being accessary to grand larceny before the fact, as is charged in the information filed against him herein.”
    
      J. L. Berry and B. P. Waggener, for defendant.
    The facts stated in the information do not charge such an offense as to authorize the verdict returned by the jury; and the court erred in instructing the jury that, under the information, the defendant could be convicted as an accessary before the fact. 1 Bish. Crim. Law, 468; People v. Campbell, 40 Cal. 129; Baron v. People, 1 Park. Crim. Bep. 246; State v. Wyckoff, 31 N. J. Law, 65. Section 115, Crim. Code, is the only section claimed to authorize a conviction in •this case as an accessary before the fact; but that section does not authorize such conviction. Johns v. State, 19 Ind. 423. But if under the information filed the defendant could be convicted as an accessary before the fact at all, we contend it was necessary that the jury find that an offense was committed, that there was a principal ■offender, and that this defendant was accessary before the fact to him. The court neglected to state to the jury these several ingredients which are necessary to a conviction as an accessary before the fact. *Ogden v. State, 12 Wis. 532; Holmes v. Com., 25 Pa. St. 221.
    If it be conceded that said section 115 does, in terms, authorize such conviction, then we claim that it is in conflict with section 10 of the bill of rights (of the constitution) of this state. State v. Bicker, 29 Me. 84; Johns v. State, supra. The defendant is charged as principal, and not as accessary before the fact, and did not know and could not have known, under the information, that any evidence, would be introduced tending to convict him of being an accessary. He. Rad a right to demand the “nature and cause of the accusation against him;” and being charged as principal, was prepared to defend himself against such charge, and none other. Johns v. State, 19 Ind. 423; State v. Wyekoff, 31 N. J. Law, 65; People v. Gassaway, 28 Cal. 404.
    The court erred in modifying instructions asked for by defendant, as the instruction as asked for was the law, and the instruction as modified was not, and was calculated to mislead the jury; and there was error in refusing to give instruction asked for by defendant applicable to the case under the evidence, and a refusal to give the same was prejudicial to the rights of the defendant. Thompson v. Lee, 8 Cal. 275; McIntyre v. Willis, 20 Cal. 177.
    The court erred in overruling the motion in arrest of judgment. The record shows that the defendant was not arraigned before trial, and required to plead to the information. Neither was there any plea of not guilty entered by the court for the defendant before proceeding to trial. Without a plea of not guilty by the defendant before the. trial, or his refusal to plead, so that the court might enter a plea of not guilty for him, there was no issue to be tried; and for this reason the court should have sustained the motion in, arrest of judgment. See section 161, Crim. Code; Powell v. U. S., 1 Morris, 17; Douglass v. State, 3 Wis. 820; McJunkins v. State, 10 Ind. 140; Rockey v. State, 19 Ind. 225; McKinney v. People, 2 Gilman, 540.
    
      *A. L. Williams, Atty. Gen., for the State.
    Two questions are raised in this case, though incidentally others are suggested by the record: (1) Is the failure to arraign a prisoner charged with felony a sufficient ground in arrest of judgment? (2) Can a prisoner charged as accessary before the fact be convicted of an offense committed in Kansas at a time when he was actually in another state ?
    The record does not show that the prisoner was not arraigned. It is true that the county attorney made an affidavit that the party was not arraigned, but it does not appear that this was all the evidence about the matter; and the presumption is that he was arraigned. Besides, the record shows that the county attorney was not present at the trial. A failure to arraign the prisoner, however, is not ground for arrest of judgment except in capital cases. Grim. Code, § 161; Crimes Act, § 293.
    An accessary before the fact is, in substance, defined by section 115, Crim. Code. At common law. an accessary before the fact was “one who, though absent at the time of the commission of the felony, doth yet procure, counsel, command, or abet another to commit such felony.” 1 Hale, P. C. 615; 4 Bl. Comm. 37. Under our laws an accessary before the fact is charged and tried as though he were the principal. Crim. Code, § 115. But both at common law and by statute the whereabouts of the accessary at the time of the commission of the felony is immaterial, the jurisdiction being at the place where the offense was actually committed. Crim. Code, § 28; Whart. Crim. Law, § 134.
    
      
       See note to Leonard v. Territory, 7 Pac. Rep. 882. See also, State v. Kearley, 26 Kan. 77; State v. Bridges, 29 Kan. 138.
    
    
      
       Possession of property recently stolen. State v. Stewart, 24 Kan. 250; State v. Henry, Id. 457.
    
   Brewer, J.

Defendant was tried in the district court of Atchison county on an information charging burglary and grand larceny. The jury found him guilty of being “an accessary before the fact to grand larceny.” Upon this verdict he was sentenced to two years’ imprisonment. Several questions are presented in the record. The first important *one is whether, under an information charging a party as principal, he can be convicted of being an accessary before the fact. In other words, must not the information charge him as accessary, and not as principal? Section 115 of the Code of Criminal Procedure (Gen. St. 839) provides that “any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal.” See, also, section 287, Crimes Act, (Gen. St. 380, c. 31.) The intention of the legislature in these sections is obvious. It authorizes the charging of an accessary before the fact as a principal. The intention being plain, the question of power is raised. Section 10 of the bill of rights (Gen. St. 39) declares that “in all prosecutions the accused shall be allowed * * * to demand the nature and cause of the accusation against him.” Hence counsel say: “Defendant is charged as principal, and not as accessary before the fact, and did not know, and could not have known, under the information, that any evidence would be introduced tending to convict him as an accessary. He had a right to demand the ‘ nature and cause of the accusation against him,’ and, being charged as principal, was prepared to defend himself against such charge, and none other.” This section does not attempt to require that the particular connection an accused has with the offense charged shall be stated in the indictment or information. It does not attempt to indicate how much of detail or specification is essential to a criminal pleading. It requires, of course, a statement of the crime charged. Under an information for larceny there could be no conviction for manslaughter. But when the crime committed is charged, — larceny, as in this case, — then it is not made imperative by this section that the information state the particular acts done, or part performed, by the accused in connection therewith.

It is true that at common lawr a distinction was made between principals and accessaries, according to the extent of participation in the offense. The immediate actor was called “principal in the first degree;” the one present, aiding, and abetting, *“principal in the second degree;” the one procuring, counseling, or commanding the offense, though absent at the time of its commission, “accessary before the fact;” and tbe one knowing of the felony, and receiving and assisting the felon, “accessary after the fact.” It is also true that, under an indictment charging one as principal, it was impossible to convict him as accessary, and vice versa, (1 Chit. Grim. Law, 272; Rex v. Plant, 7 Car. & P. 575; Whart. Grim. Law, § 114;) and as there could be no accessary without a principal, the former could not, against his consent, be convicted, except jointly with or after, the latter. 1 Bish. Crim. Law, §§ 667, 668. Yet these distinctions were all based upon the relation of the accused to the crime. In the commission of one offense, all four classes might participate. The distinctions were arbitrary, and their enforcement, and the rules growing out of them, often operated to the hindrance of justice. Yet, wise or unwise, they simply classified participants in one offense; and, being arbitrary, they may all be abolished, and all participants in a crime be declared equally and alike guilty, without regard to their proximity thereto, or the extent of their participation therein. The legislature has not attempted to say that the crime committed shall not be charged; that the “nature and cause of the accusation” shall not be stated; but has simply declared what acts shall render one guilty of this crime. The one acting; the one present, aiding and abetting; and the one absent, counseling, aiding, and abetting, — are declared to be equally and alike guilty. Nor is this the introduction of a new or harsh rule. At common law, if two engaged in the commission of an ordinary felony, and in furtherance of it one committed murder, both were declared equally guilty thereof. The common consent to do wrong rendered each responsible for all acts done in furtherance of the wrongful purpose. Under our statutes one indicted for an offense consisting of different degrees may be convicted of the degree charged, or of any degree inferior thereto, or of an attempt to commit the offense. Grim. Code, § 121. A somewhat similar question was before this court in the case *of McFarland v. State, 4 Kan. *68, and the power of the legislature to provide that property stolen outside and brought into this state could be charged to have been stolen within the state was sustained. We see, therefore, no error in the ruling of the district court upon this point. The verdict might properly have been simply guilty of larceny; yet specifying the particular connection of defendant with the crime did not vitiate the verdict. It wrought no prejudice to his rights. Lewis v. State, 4 Kan. *309.

- A second very important question, presented and discussed by counsel in their brief, is whether a person who, out of the state, becomes an accessary before the fact to a felony committed within the state, can be punished under our statutes. Does the power of the state reach to such extraterritorial acts ? and, if it does, has the state by statute assumed to exercise this power ? That this question is one of no little difficulty, see the cases of Johns v. State, 19 Ind. 421; State v. Wyckoff, 31 N. J. Law, 65; 1 Bish. Crim. Law, § 111. We do not care to enter into an examination of this question until it is fairly before us; and, as the record now stands, we think the instructions aimed at this question were properly refused on other grounds. The testimony is not preserved. In the bill of exceptions it is stated that the defendant offered evidence tending to prove that the first connection of any kind he ever had with the stolen property was in the state of Missouri, and also tending to prove that he had not aided, abetted, or counseled any one in the state of Kansas in the commission of the offense, and asked the following instruction: That “if the jury believe the said skins were actually stolen, and believe that the first connection defendant had with them was in the state of Missouri, then they must acquit the defendant; and, if they have any doubt about this fact, they must acquit the defendant.” This instruction, as tendered, the court refused, but gave it modified by omitting the last clause and adding to the rest of the instruction this proviso: “Unless you further believe from the evidence he counseled, aided, *'and abetted the taking of the same before they were so taken.” It is evident the instruction asked was wrong. The defendant is not entitled to the benefit of every doubt, but only of a-reasonable doubt.

Again, the instruction refers to the first connection of the defendant wfith the property stolen, and not with the crime of stealing it. It ignores that particular phase of crime of which the jury found the defendant guilty. The verdict demonstrates the impropriety of the instruction. The addition made by the judge, unquestionably good law in the abstract, appears from the verdict to have been appropriate to the particular facts of this case. The other instruction bearing upon this question is thus presented in the bill of exceptions: “And the said defendant having offered some evidence tending to show that he never had said furs so alleged to have been stolen in his possession or under his control in the state of Kansas, and also having offered some evidence tending to show that he had not aided, counseled, or abetted any person in the commission of said offense in the state of Kansas, asked the following instruction: ‘ If the jury have any reasonable doubt that the defendant ever had the furs and skins alleged to have been stolen in his possession in the state of Kansas, or any reasonable doubt that he committed the offense charged against him in the state of Kansas, either as principal or as accessary before the fact, then they must acquit the defendant.’ ” This instruction was refused. It presents, in a disjunctive statement, two conditions of acquittal. Of course, if there were error in either, the instruction as a whole was properly refused. Now, the first part of this instruction is subject to the same criticism as that placed upon the instruction just considered. It ignores that of which the jury found the defendant guilty, and directs an acquittal upon matters which, in the view taken by the jury of the testimony, and properly so taken, as we must presume in the absence of the evidence, were wholly immaterial. It directs an acquittal if the jury have a reasonable doubt of bis ever having the stolen property in his possession in the state of Kansas. But if he counseled, aided, and abetted the stealing, *it matters not whether he ever had possession anywhere of the stolen property. It lifts a single circumstance, which may have been wholly unimportant, into an essential and determining consideration. We think, therefore, the court might properly have refused these instructions without considering the question discussed by counsel.

A third question is thus presented in the bill of exceptions: “The defendant having offered some evidence tending to prove that the only connection he had with said alleged offense was the possession of said furs (alleged to have been stolen) in the state of Missouri recently after they had been stolen, asked the following instruction: ‘That proof of possession of the furs by defendant in the state of Missouri recently after they had been stolen, unaccompanied by any other circumstance of guilt, is not sufficient to throw the burden of proof upon the defendant to show such possession lawful, and is not sufficient of itself to authorize a conviction.’ ” This was refused. On the contrary, at the instance of the prosecuting attorney, the court, instructed the jury that “the possession of stolen goods recently after they are stolen is a strong presumption of guilt. ” That the rule that possession of property recently stolen makes out a prima facie case of guilt, and throws upon the defendant the burden of explaining that possession, is one of long standing, and abundantly fortified by authorities, ¿10 one can question. See, among others, 1 Greenl. Ev. § 34; Burr. Cir. Ev. 446, and cases cited in notes; 1 Phil. Ev. 634, and notes, with cases cited therein; and, among later cases, Mon-dragon v. State, 33 Tex. 480; Price’s Case, 21 Grat. 864; Unger v. State, 42 Miss. 642; State v. Turner, 65 N. C. 592; Knickerbocker v. People, 43 N. Y. 177. Such possession is said to raise a presumption of guilt, and, if unexplained, is sufficient to warrant a conviction. Some attempts have been made to qualify or limit this rule. In State v. Hodge, 50 N. H. 510, it was held that this presumption of guilt was not a presumption of law, but one of fact. In People v. Chambers, *18 Cal. 382; People v. Ah Ki, 20 Cal. 177; People v. Antonio, 27 Cal. 404; and Conkwright v. People, 35 Ill. 204, — it was held that the recent possession of stolen property, unaccompanied by other circumstances of guilt, is not sufficient to warrant a conviction. In 3 Greenl. Ev. § 31, it is intimated that the rule as given in 1 Greenl. § 34, heretofore cited, is stated too broadly, and that perhaps there should be something more than recent possession to justify a verdict of guilty. Still, the overwhelming weight of authority is with the rule as stated; and, as fairly and reasonably interpreted, we think it ought to stand. It does not assume that there is any certain time possession within which is recent possession, and therefore proof of guilt. It is not the statement of an absolute and conclusive legal presumption. It is a presumption which is strong or weak according to the nature of the property stolen, the time and place of the larceny, the time within which the possession is shown, the manner of holding, and the various other conditions which, appearing in any case, give occasion for the application of the rule; for it must be remembered that a jury never passes upon this as an abstract question, isolated from facts and persons. A larceny must always be proved before there can be any presumption as to who is the thief. Now, when the larceny is proved, the possession may be shown so recently, so almost instantaneously, thereafter, as to render it morally certain that the possessor was the thief. To declare otherwise, would be to ignore all those facts of human experience and conditions of human action which support the rules of evidence. To instruct a jury that such a recent possession was insufficient to call upon the defendant for an explanation, and, unexplained, to warrant a conviction, would insult the intelligence of every juror. As the time between the larceny and the possession is enlarged, the necessity of additional evidence appears, and in some cases the fact of possession may be but a slight circumstance indicative of guilt.

There may, of course, be cases where the possession is so long after the larceny that the court ought to instruct the jury that something more than possession must *be shown to justify a conviction; but as there may be cases where that possession is so recent as to warrant a verdict of guilty, this court cannot, in the absence of a full statement of the facts, say that the district court erred in refusing to instruct the jury contrary to the ancient rule. Whatever suggestions or explanations or qualifications may be appropriate in any case will depend upon the peculiar facts of that case. All that we decide here is that it is not necessarily error to refuse an instruction like that asked, even where there is some testimony tending to show that the only connection defendant had with the offense was in the recent possession of the stolen property. One suggestion more in reference to this question. The verdict of the jury shows that defendant was not present at the time of the commission of the offense, and therefore did not then acquire the possession of the stolen property. What the testimony was upon which the. jury found that he incited, procured, counseled, or abetted beforehand the larceny, we are not informed. It may well be that this whole matter of recent possession was, in the view taken by the jury and justified by the testimony, wholly immaterial.

The record fails to show that defendant was arraigned or pleaded to the information. It shows that he appeared in person and by counsel, and that, both parties being ready for trial on the information filed, a jury was called, and the case tried. An affidavit appears in the transcript to the effect that, as a matter of fact, the defendant was not arraigned, and did not plead; but by what right such affidavit appears in the transcript we cannot tell. It was not made a part of the bill of exceptions, nor does it appear to have been used upon any of the motions in the case. Assuming it, however, to be proven that the defendant was not arraigned, and did not enter a formal plea, but being present in person and by counsel, and announcing himself ready for trial upon the information, went to trial before a jury regularly impaneled and sw’orn, and submitted the question of guilt to their determination, will the omission of the arraignment or formal plea avail the defendant thereafter, either on *a motion for new trial or in arrest of judgment? It may be conceded that at common law it would. See the authorities cited by defendant in his brief. But under our statutes we think a different rule must obtain. By section 161 of the Criminal Code (Gen. St. 846) it is declared that when a person shall be arraigned “it shall not be necessary to ask him how he will be tried; and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer, and in all cases when he does not confess the indictment or information to be true, a plea of not guilty shall be entered, and the same proceedings shall be had in ail respects as if he had formally pleaded not guilty.” And by section 293 it is provided that “on an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” It seems to us that under those sections the omission did not, and could not, affect the substantial rights of the defendant, and therefore is not ground for disturbing the judgment. State v; Lewis, 10 Kan. *157.

These are all the questions we deem it necessary to consider, and there appearing in them no substantial error, the judgment of the district court will be affirmed.

(All the justices concurring.)  