People v. Titherington — 59 Cal. 598

Majority

p. 598

[No. 10,672.

Department Two.]

THE PEOPLE v. ISAAC N. TITHERINGTON.

Headnote

Possession of Stolen Pbopebty—Instbuction as to Weight of Evidence.—Whether the possession of stolen property is strong evidence, or only slight evidence tending to show guilt, is a matter for the jury to pass upon, and not for the Court to determine.

Appeal from a judgment of conviction, and from an order refusing a new trial, and from an order denying a motion in arrest of judgment, in the Superior Court of Lassen county. Hendrick, J.

0. 0. Kelly, for Appellant.

A. L. Hart, Attorney General, for Respondent.

Defendant was prosecuted for burglary, and on the trial the Court gave the jury the following instruction: “Although the possession of property alleged to have come from the house named in the information is not sufficient to convict the defendant of burglary or larceny, as stated in the second instruction, given at request of defendant, yet that instruction refers to the possession of such property alone. But such possession, if proven to the satisfaction of the jury, and unexplained by the defendant, supported by other circumstances tending to show guilt, is a strong circumstance tending to show guilt.”

Such an instruction was held erroneous by this Court, in Bank, in the case of The People etc. v. Ah Sing. It was said in that case that “ whether the possession was strong evidence, or only slight evidence tending to show guilt, was a matter for the jury to pass upon, and not a question for the Court to determine.” (Supra.)

Judgment and order reversed, and cause remanded for a new trial.