Ed Harper v. State

• Decision Date: 13 November 1893
• Citation: 71 Miss. 202,13 So. 882
• Court: Mississippi Supreme Court
• Parties: ED HARPER v. THE STATE

13 So. 882

71 Miss. 202

ED HARPER v. THE STATE

Supreme Court of Mississippi

November 13, 1893

October 1893

FROM the circuit court of Attala county, HON. C. H. CAMPBELL Judge.

Appellant Ed Harper, was indicted jointly with another for the offense of burglary and larceny, the indictment charging that they feloniously and burglariously broke into a store-house and stole therefrom certain clothing, the house and clothing being the property of Kelly & Mills. A severance was granted and, on the trial of appellant, evidence was introduced tending to show that, soon after the clothing was missing, some of it was found in the possession of accused. In view of the opinion, it is not necessary to set out the evidence.

The instruction for the state the granting of which this court condemns, is as follows:

"1. The court instructs the jury that where a burglary is shown to have been committed, and possession of the stolen goods is proved recently after the loss of said goods, then the finding of the stolen goods is presumptive evidence that the possessor thereof committed not only larceny, but burglary, and if the jury believe from the evidence, beyond a reasonable doubt, that Kelly & Mills' store was broken into, and that goods were found in the possession of the accused that were taken out of said store, and belonged to Kelly & Mills, then the law presumes defendant is guilty of the crime charged, unless said possession is reasonably accounted for, and explained by the evidence in the case."

Defendant was convicted, and, after motion for new trial overruled, appeals.

Reversed and remanded.

Anderson, Haden & Davis for appellant.

There is no evidence that the goods traced to appellant's possession had been recently stolen. The effect of such evidence, if there was any, should have been left to the jury without any instruction. Matthews v. State, 61 Miss. 155.

Frank Johnston, attorney-general, for the state.

The evidence shows that the stolen goods were found in possession of accused soon after they were stolen, and his explanation was unreasonable and unsatisfactory.

OPINION

WOODS, J.

The evidence of recent possession by the accused of any goods proved to have been burglariously stolen from the store-house of Kelly & Mills, is very unsatisfactory; and the evidence of the burglary itself, as it appears in the record, is also very unsatisfactory.

But we reverse the judgment of the...