The State v. Tucker

• Decision Date: 20 December 1888
• Citation: 40 N.W. 725,76 Iowa 232
• Parties: THE STATE v. TUCKER
• Court: Iowa Supreme Court

40 N.W. 725

76 Iowa 232

THE STATE v. TUCKER

Supreme Court of Iowa, Des Moines

December 20, 1888

Decided October, 1888.

Appeal from Delaware District Court.--HON. JOHN J. NEY, Judge.

INDICTMENT charging the defendant with the larceny of two horses. Verdict, guilty, and judgment The defendant appeals.

REVERSED.

Bronson Carr & Le Roy, for appellant.

A. J Baker, Attorney General, for the State.

OPINION

SEEVERS, C. J.

There was evidence tending to show that the horses were in the possession of the defendant recently after they were stolen. The court instructed the jury as follows: "(3) The possession, unexplained, of property recently stolen, is prima-facie evidence that the person in whose possession the property is found is the person who stole the property, and such possession is sufficient to justify you in finding the defendant guilty, unless the facts and circumstances attending the possession, as shown by the evidence in the case, are such as to raise in your minds a reasonable doubt of defendant's guilt. The question as to the nature of defendant's possession of the stolen property is one that you must determine from all the evidence in the case. If you are satisfied, from all the evidence in the case, beyond a reasonable doubt, that the possession of the defendant was a guilty possession, you should convict but, if you have a reasonable doubt of the possession of the defendant being a guilty one, you should acquit. The nature of the defendant's possession is a question of fact to be determined by you on all the evidence in the case." It will be observed that the court instructed the jury that the unexplained possession of recently stolen property is presumptive evidence of guilt, and that if the jury was "satisfied from all the evidence, * * * that the possession of the defendant was a guilty possession," then he should be convicted. This instruction is clearly erroneous, for under it the defendant could be found guilty of receiving stolen property knowing it to have been stolen. He was not charged with the last-named crime, and it is materially different from the crime with which he was charged. For this error there must be a reversal.

The defendant further insists that the evidence does not sustain the verdict. Without setting out the evidence or discussing it at length, we deem it proper to say, in view of a new trial, that unless additional and material evidence can be...