The opinion
BROWN, P. J.
I concur in the reversal of the judgment in this case for the reasons following.
[1]
The trial court, in dealing with the evidentiary value of the recent possession of stolen goods by one accused of the crime of larceny, instructed the jury as follows:
“Now, the recent unexplained possession, and it is not denied by the defendant that he was in possession of
the goods,
and you have heard his explanation — the recent unexplained possession of goods does not necessarily raise the presumption of larceny or the guilt of the possessor. However, recent unexplained possession of
the goods shown to be stolen
in [is] such a circumstance which the law permits to be shown you, and to which you, in your sound discretion, may give such weight as you think proper, to pass on the innocence of the defendant. It is for you to say what weight is to be attached to the value of recent possession.
Has the defendant satisfied yon by Ms explanation, reasonably satisfied you, or satisfied you beyond n reasonable doubt by Ms explanation,
you as men of everyday business affairs, common sense, and judgment?”
An exception was reserved by the defendant to the portion last above italicized. In this instruction there is a clear implication that the goods in question were shown by the evidence to have been stolen, goods, and this implication, when considered in connection with the quoted excerpt, embodies a positive instruction to this effect and is a charge on the effect of the evidence, and in this case an invasion of the province of the jury.- Code 1907, § 5362.
[2]
The theory of the state as developed in the evidence is that the defendant took the gowns in question from- the stock in the store where they were displayed for sale and placed them in a suit box and was, when detected, in the act of asporting them; while the theory of the defense is that defendant, while in the discharge of his duties as porter of the Parisian Company’s place ,of business, accidentally discovered the box in a pile of rubbish and from its weight discerned that it contained -something, and without opening the box and with a purpose to deliver it to the manager of the store, he took it out of the pile of rubbish, and while on his way to the office of the manager came upon the manager and delivered it to him. If the state’s theory of the case is the correct theory, the acts of the defendant were secretive, and if the defendant’s theory of the case is the true one, there was no taking of the goods of any character and the principle of law embodied in refused charge 26 is not applicable. Moreover, the intent to “hinder or delay” is not an essential element of the offense charged in either counts of the indictment, and the charge was faulty, in that it embodied these elements.
BRICKEN, J., concurs in the foregoing opinion.