Robb v. State

• Decision Date: 28 September 1892
• Citation: 53 N.W. 134,35 Neb. 285
• Parties: ROBB v. STATE.
• Court: Nebraska Supreme Court

35 Neb. 285

53 N.W. 134

ROBB

v.STATE.

Supreme Court of Nebraska.

Sept. 28, 1892.

Syllabus by the Court.

1. The possession of stolen property recently after the larceny thereof, when unexplained, may be sufficient to warrant the jury in inferring the guilt of the party in whose possession it is found. Whether such inference should be drawn is a question of fact exclusively for the jury.

2. On a prosecution for larceny, a charge that “the possession by an accused person of personal property proved to have been recently stolen is sufficient to fasten the guilt of its larceny upon the accused prima facie, and calls upon him to prove the innocence of his possession,” is erroneous, in that it omits to state that it is only when the possession is unexplained that the inference of guilt arises, and because it is in effect an instruction that the burden of proof shifted during the trial to the defendant.

Error to district court, Lancaster county; FIELD, Judge.

Willie Robb was convicted of larceny, and brings error. Reversed.W. L. Cundiff, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

NORVAL, J.

The plaintiff in error was informed against in the Lancaster county district court, charged with the larceny of a gold watch from the person of one Henry Burcham on the 10th day of September, 1890. On the trial, the plaintiff in error was convicted, and sentenced to imprisonment in the penitentiary for the period of two years and six months. A number of errors are assigned in the motion for a new trial, but the giving of the fourth paragraph of the charge to the jury only is relied on for a reversal in this court. The instruction to which objection is made reads as follows: “You are instructed that the possession by an accused person of property proved to have been recently stolen is sufficient to fasten the guilt of its larceny upon the accused prima facie, and calls upon him to prove the innocence of his possession. In this case, then, if you find from the evidence that the watch in question was stolen from the person of Henry Burcham at the time and place as alleged, and if you further find from the evidence, beyond a reasonable doubt, that shortly after the alleged theft the defendant herein had the watch in his possession, then the presumption, prima facie, would be that the defendant stole the watch, and such presumption would be sufficient to warrant you in finding that the defendant did steal the watch from the said Burcham at the time and place alleged in the information, unless the defendant would make some explanation or account for the possession of said watch, upon some theory other than having gained the possession of said watch by theft. But in this case, if the evidence offered by the defendant as to the manner in...