The opinion
I.
Sherwood, C. J.
We will not reverse the judgment because the record does not show that defendant consented to the separation of the jury. It is true that section 1909 of the General Statutes, provides that the court, “ with the consent of the prosecuting attorney and the defendant * * may permit the jury to separate, * * except in capital cases.” But that statute nowhere provides that the record shall recite the fact of consent given. In the absence then, of any objection appearing to the separation of the jury, the presumption-will be that the necessary consent was given. Such presumptions always attend the acts and doings of courts of general jurisdiction. SincQ, then, the record is silent on the point, we will presume that the consent of the defendant was duly asked and obtained.
II.
There was no error in giving the second instruction *319 asked on behalf of the State, if there was evidence offered to support the allegation of the indictment that the property was stolen from a dwelling house ; for in such cases, the larceny is grand, regardless of the value of the property, and is punishable by imprisonment in the penitentiary not exceeding seven years. R. S. 1879, § 1309; State v. Ramelsburg, 30 Mo. 26 .
As the evidence has not been preserved in the bill of exceptions, we shall assume that the court would not have given an instruction relating to larceny from a dwelling house, nor the jury have found defendant guilty as charged, unless upon sufficient evidence.
III.
' The fourth instruction, given at the instance of the State, in reference to the recent possession of stolen property being presumptive evidence of the possessor’s guilt, unless explained, etc., has always been the law of this State. State v. Kelly, 73 Mo. 608 , and cases cited. No evidence having been preserved, and nothing to show that good character was established, the instruction was, doubtless, broad enough. We shall assume that it was, and that it conformed to the evidence.
Finding no error in the record, we affirm the judgment.
All concur, except Hough and Henry, JJ., who dissent as to the third paragraph in reference to the recent possession of stolen property.