1. In a burglary case it appeared that a Chinaman's trunk and pipe were stolen from the burglarized building. There was evidence that two persons carried a "China trunk" from the lot on which the building was situated about the time the crime was committed; that defendant and others were seen with such a trunk about that time; and that such Chinaman's trunk was found open two days afterwards, a considerable distance from the building. There was no evidence that a "China trunk" is any different from any other trunk. The pipe was put in evidence, but there was no testimony as to where it was found. Held, that the evidence did not justify an instruction as to the effect of possession of property recently stolen.

2. It is error to charge that the possession of stolen property soon after the taking, while not sufficient to justify a conviction, is a "guilty circumstance,' and that defendant was bound to explain the possession in order to remove its effect.

3. Where a witness for the state, in a criminal case, is absent when wanted, and is brought in by an officer, it is error for the court, in the presence of the jury, to hold a colloquy with such witness, which tends to discredit defendant and his counsel, and lead the jury to believe that, if they were not guilty of a grave offense in procuring the absence of the witness, they were, in the opinion of the court, capable of committing it, and that such conduct on their part could only be induced by consciousness of defendant's guilt.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; B. N. Smith, Judge.

George Abbott was convicted of burglary, and appeals. Reversed.

C. C. Stephens, for appellant. Atty. Gen. Hart, for the People.

HAYNES, C. An information charging Amos Abbott, George Abbott, and Albert Acevedo with burglary, committed on the 5th day of September, 1891, in the room of one Ah Sic, in the city of Los Angeles, was filed by the district attorney. The defendants severed. Appellant George Abbott pleaded not guilty, was tried, found guilty by the jury, and sentenced to imprisonment for the term of five years. A motion for a new trial was made and denied, and from the judgment and the order denying a new trial defendant appeals.

A very large number of exceptions were taken by appellant upon the trial, and referred to in the brief of his counsel, but we regret to say that the brief gives us little aid beyond the mere reference to the folio in the transcript where the exceptions are found; and on the part of the people the brief of the attorney general, prepared and signed by his first deputy, is little more than a pert, if not impertinent, denial that there is anything of merit in the alleged errors referred to by appellant's counsel. Where the protection of the people against crime

upon the one side and the liberty of the cit izens is at stake upon the other, the questions involved are of such importance as to require a careful examination and discussion by counsel in order that just conclusions may be reached by the court. Ah Sie and Ah Poy, whose property is alleged to have been burglariously stolen, were partners and proprietors of a Chinese drug store on Marchessault street, in the city of Los Angeles. In the rear of the room occupied as a drug store was a room used as a public reception room. To reach this room persons passed from a door in the side of the drug store into a hall which extended back past two or three other rooms to a kitchen, and from this hall was an entrance into the room immediately in the rear of the drug store The next room in the rear of the reception room was Ah Sic's sleeping room, in which the property alleged to have been stolen was kept. The testimony tends strongly to show that this reception room was visited by many persons, of all colors and nationalities. for the purpose, among other things, of purchasing Chinese lottery tickets; and on the evening of September 5th the defendant, with his brother and many other persons, were in this room for a considerable time,how long will be hereafter noticed,-but the room appears to have been open, and different persons going to and coming from it from early in the evening until the discov ery of the alleged burglary, about a quarter past 10 o'clock. Between the storeroom and this reception room was a small glass window, through which one in the drug store could observe those in the reception room, and those in the reception room could see those coming into the storeroom. The bur glary was effected by boring through a board partition between Ah Sic's room and an unoccupied building near or adjoining that room so as to remove the boards for a suificient space to take out, through the opening, a trunk which is said to have been stolen. The only article, aside from the trunk, shown to have been stolen, was an opium pipe, which Ah Sic testified was on that evening lying upon his bed in the same room. In the trunk was some clothing, not described in the evidence, a small bamboo basket containing silver, and gold in a buckskin bag, amounting in all to some serca or eight hundred dollars. A Chinamar named Ah Tung testified that a little after 10 o'clock the night of the burglary he saw the defendant and another man carrying a chest, coming out of Ah Sic's back yard. and saw them go out through the gate of the fence, but he did not know at that time of the burglary, and did not think there was anything wrong, but next morning learned it was "stealing." Pierce Boyle, a witness on the part of the prosecution, testfied that he saw two men coming out of the gate from the Chinaman's back yard; that they went under a pepper tree, and put the

box down there, and then blew a whistle on their fingers, and two more young men came up; and further testified in that connection: "Well, then I saw the other two young men come up round a big load of hay there in the middle of the street. They got the box, and I told them, 'Hello, boys; hold on there;' and I picked up a rock and throwed the rock after them, and then they blew a whistle. These two men had a box between them, running, sort of like a Chinaman's. They were what I would call trotting. They came with the box within 15 feet of me. I measured it since. When I first saw them they were coming from the Chinaman's house." This witness did not identify any of the men he saw in connection with the box. This witness fixed the time of this transaction at "10 o'clock, or may be a quarter past." Ah Ngau testified that he saw the defendant and three other men with a Chinese chest or trunk at the corner of Alameda street and the convent; that he was coming up from the old railroad depot towards Chinatown, and they were going towards the convent; that the defendant and another one with him was carrying the chest, and the other two followed two or three steps behind; that when he got to his room, about two blocks from where he met them, it was a quarter after 10; that he had been to a laundry near the old depot to see a friend. Ah Ging testified that he went to the old depot with a friend who was going to take the train for San Francisco; that they went a little after 10 o'clock to the depot. As he was going he saw the defendant, and another whom he did not know, carrying a chest. That he knew the two that were following by sight, but not their names. That where he saw them was between Alameda street and a small street running into it from the west, just opposite the lumber mill. That they were crossing Alameda street, and he was going towards the depot. The burglary occurred Saturday night, and on Monday at noon the trunk or chest was found in a corn field, down towards the river, a considerable distance from the place of the burglary. The trunk had been broken open and the clothing scattered around. Neither the pipe nor any of the contents of the trunk were at any time found in the possession or in any manner connected with the defendant, and there was no evidence of his possession of the stolen property other than that above stated, namely, that he was seen with others carrying a box or chest, but there was no evidence tending to identify the box or chest which was carried with the one that was stolen, other than the circumstances above stated.

I have stated so much of the testimony for the purpose of showing the materiality of certain instructions given and refused upon the questions of identification of the defendaut, and inferences to be drawn from te

possession of stolen property. Upon the latter question the court, at the request of the district attorney, charged the jury as follows: "The mere possession of stolen property, unexplained by the defendant, however soon after the taking, is not sufficient to justify a conviction; it is merely a guilty circumstance, which, taken in connection with other testimony, is to determine the question of guilt. Yet if you believe from the evidence that the defendant was found in the possession of the property described in the evidence, or claiming to be the owner thereof, after the alleged burglary, this is a circumstance tending in some degree to show guilt, but not sufficient, standing alone and unsupported by other evidence, to warrant you in finding him guilty. There must be, in addition to proof of possession of property stolen from the premises described in evidence, proof of corroborating circumstances tending of themselves to establish guilt. These corroborating circumstances may consist of acts or conduct or declarations of the defendant, or any other circumstances tending to show the guilt of the accused. If the jury believe from the evidence the property mentioned in evidence was stolen from the premises described in evidence, and was seen in the possession of the defendant shortly after being stolen, the failure of the defendant to account for such possession or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and the accused is bound to explain the possession in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious, facts, if the evidence disclosed any such." Conceding, for the moment, that the instruction as given correctly stated the law as an abstract proposition, it was not applicable to the facts of the present case. Before a defendant can properly be called upon to account for the possession of stolen property, the circumstances must be such as would make silence as to such possession an evidence of guilt. Here the fact of possession was denied. The defendant could not explain his possession of the goods without admitting that he had possession. If he had been arrested with the trunk in his hands, and had been asked by the officer where and how he got it, he would have been called upon to speak, and his silence, if he refused to speak, as well as his answer, if false, would have been evidence against him. Defendant's alleged possession of the property depended upon a double identification: First, that the trunk or chest carried by the two men was the property stolen from Ah Sic; and, second, that defendant was one of the men who carried it. The only identification of the trunk was that the one found in the corn fielu on Monday was the one taken from Ah Sic the Saturday night preceding, while the only evidence tending to identify the trunk carried by the men with the one found

in the corn field was that it was "a China trunk;" but there was no evidence that a China trunk is different from any other trunk. No other description was attempted by any of the witnesses who claimed to have seen the defendant helping to carry it. The pipe was produced in evidence, but there is no testimony from beginning to end as to where it was found. It was not in the trunk at the time of the burglary, and it is not probable that it would have been stolen from the bed, and carried to the corn field, and left there with the broken trunk; nor was any part of the contents of the trunk found in possession of the defendant, or in any manner accounted for. Nor was the identification of the defendant as one of the men who carried the trunk more satisfactory. The evidence of the Chinamen who testified that they recognized the defendant as one of the men who carried the trunk was not only open to serious doubt and criticism, but the evidence on the part of the defendant, if true, would seem to make it clear that the man identified by the Chinaman as the defendant could not have been the defendant. Wills, in his work on Circumstantial Evidence, 6th American from the 4th London Ed., p. 63, in discussing the subject under consideration here, says: "The rule under discussion is occasionally attended with uncertainty in its application from the difficulty attendant upon the positive identification of articles of property alleged to have been stolen; and it clearly ought never to be applied where there is reasonable ground to conclude that the witnesses may be mistaken, or where from any other cause identity is not satisfactorily established."

In the cases cited at the end of the above quotation, it will be seen that the circumstances under which instructions similar to the above were given did not involve the uncertainties as to the identification of the property or of the person that were so prominent here. In People v. Gill, 45 Cal. 285, four horses were stolen during the night, and the next day the defendant was seen riding one of the horses, accompanied by another man, and the two had the four stolen horses with them. There seems to have been no question whatever as to identity made in the case. In People v. Clough, 59 Cal. 438, the defendant was charged with robbery. The person robbed immediately notified the chief of police, who made immediate pursuit, and captured the defendant within a few minutes after the robbery was committed. The property which had been taken from the prosecuting witness was found upon the defendant, and the only explanation he gave of such possession was that he had "picked up the watch." In People v. Velarde, 59 Cal. 457, the property alleged to have been stolen consisted of cattle, which were found in defendant's possession, who undertook to account for his possession and ownership. In such cases as these an instruction upon the

subject of possession of the stolen property shortly after the alleged larceny is proper, but those cases are very different from the one at bar. I think, too, the matter of this instruction is subject to serious criticism. It states directly that the possession of stolen property soon after the taking, while not sufficient to justify a conviction, is "a guilty circumstance." In People v. Cline, 74 Cal. 575, 16 Pac. Rep. 391, the jury was instructed that "the mere possession of stolen prop erty recently stolen is not of itself sufficient evidence to convict. The possession of stolen property, supported by other evidence tending to show guilt, is a strong circumstance tending to show guilt." This court said, Searls, C. J., delivering the opinion: "It is not a question of law upon which the court should instruct the jury, but one of fact, which is wholly within the province of the latter. In deducing the ultimate fact of guilt or innocence, they are the sole judges of the weight to be given to the probative fact of possession of property recently stolen, and stamping the character of such possession." In the case of State v. Hodge, 50 N. H. 521, in discussing this question, the court said: "The resemblance between inconclusive presumptions of law and strong presumptions of fact cannot have escaped notice, the effect of which being to assume something as true until rebutted; and, indeed, in the Roman law and other systems where the decision of both law and fact is intrusted to a single judge, the distinction between them becomes in practice almost imperceptible; but it must never be lost sight of in the common law, where the fune tions of judge and jury should always be kept distinct. Unfortunately, however, the line of demarcation between the different species of presumptions has not always been observed with the requisite precision. We find the same presumption spoken of by judges, sometimes as a presumption of law, sometimes as a presumption of fact, sometimes as a presumption which juries should be advised to make, sometimes as one which it is obligatory on them to make. *** The law is burdened and obscured by s great mass of common opinion, general uderstanding, practice, precedent, and authority (including the presumption from possSCSsion of stolen property) that has passed for law, but is in truth not law, but fact, coming down to us largely by descent from the ancient custom of the judge giving the jury his opinion of the evidence. To clear the law of this incumbrance, revive elementary principles strictly legal in their nature, sepa rate the province of the court from the province of the jury, and maintain the lat ter in its entirety, is a duty put upon us by the constitution. * When, therefore, we have come to the conclusion that the presumption from possession of stolen goods is a presumption of fact, we find ourselves prohibited by the constitution from deliver

*

ing to the jury the presumption as to a result binding upon them, or a rule by which they are to be governed." The statement, therefore, in the instruction that the possession of the property was a guilty circumstance, required the jury to give weight to some extent to the fact of possession, and, with the further statement that the accused is bound to explain the possession in order to remove its effect, under the circumstances of this case, I think was error. It would have been proper for the court to have informed the jury that the possession of the property by the defendant, if they found as a fact that he had such possession, might be considered by them in connection with all the circumstances of the case, but not that they were bound, as the instruction implied, to give it some weight against the defendant, or that the defendant, if they found he had possession of the property, was placed under such circumstances as required him to account for that possession; for whether the circumstances were such as to require an explanation is self a question of fact which the jury are authorized to determine, and was not a matter of law which they were bound to observe. The defendant was not apprehended with the property in his possession, and no circumstance transpired prior to the trial requiring him to speak at all in regard to his alleged possession of the trunk. If he had not gone upon the stand as a witness, no comment could be made to the jury upon his failure on that occasion to account for his possession of the property, and, that being true, his failure while upon the stand to give any account of a possession which he denied having is equally placed beyond comment either by the district attorney in his argument, or by the court in its instructions to the jury.

Upon the trial, Pierce Doyle was called as a witness for the people. Upon being sworn, the following colloquy occurred between the court and the witness: "The Court: Why did you leave the court room? Answer. I thought I could go down and get a drink and get back in time. Question. Did Mr. Stephens offer you any money to go away? A. No, sir; no one gave me none. Q. Did he tell you to go away? A. No, sir; he did not speak to me. Q. Did the defendant tell you to go away? A. No, sir. Q. Did the defendant offer to give you any money to go away? A. No, sir; no one did. The Court, in the presence of the jury: This looks very singular, indeed." (Mr. Stephens was defendant's attorney.) The transcript contains the following explanation of this colloquy: "Amos Abbott, a witness and brother of de fendant, left suddenly for the Islands the day before this trial was called. A motion for continuance by defendant was based on

such absence.

Counsel for defendant refused

to have the absent witness' testimony, which was complete and full, taken on former trial of same case, read in evidence, and persisted in his motion. The witness Doyle was wanted the night before, and was absent. He came into the court room before court called, and when wanted was absent, and an officer was sent to bring him in, and the court interrogated him as above." The affidavit for continuance above reierred to was made by the defendant, and was sufficient in substance and in form. The fact that the witness had before testified, and that his testimony could be read, the prosecution assenting thereto, did not make it improper that a continuance should be applied for, even though it may have justified the court in refusing the motion. Whether the court erred in refusing the motion need not be considered, as the presence of the witness was procured, and the defendant was therefore not prejudiced by the denial of his motion. There was nothing, however, in that matter, nor in the absence of the witness Doyle, that could possibly justify the grave imputation against the defendant or his counsel implied in the abovequoted examination of the witness by the court. It inevitably tended to discredit both the defendant and his counsel, and to lead the jury to believe that if they were not guilty of a very grave offense against the administration of justice in procuring the absence of the witness, that they were, in the opinion of the court, at least capable of committing it, and that such conduct on their part could only be induced by a consciousness that defendant was guilty of the crime for which he was being tried. That this must have operated to the prejudice of the defendant throughout the trial is apparent, and for this reason, if no other, a new trial should be granted. No improper motive is attributed to the court in this matter, but if the circumstances were such as to impress the court with a grave suspicion that the witness had been tampered with, the investigation should not have been proceeded with in the presence of the jury, further than to inquire of the witness the cause of his absence. The judgment and order appealed from should be reversed, and a new trial granted.

We concur: TEMPLE, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial granted.

DE HAVEN, J. I concur in the judgment.

FIELD ▼. SHORB et al. (No. 19,194.) (Supreme Court of California. Oct. 9, 1893.) GIFT-VALIDITY-CAPACITY OF DONOR-REVIEW ON APPEAL.

1. A gift of a check and certificate of deposit is established where the donor, being a business man, after having expressed his intention to make the gift, indorses the check and certificate, which he had left in the hands of the donor for safe-keeping, and redelivers them to the donee, who collects them, the donor never asking for them or their proceeds again.

2. A verdict on a finding of fact will be set aside where it is against the great current of evidence, although one or two general statements of one or two witnesses bring it within the rule which governs where there is a material conflict of evidence.

3. In an action for an accounting and to set aside a gift as made when the donor was insane, it appeared that he was very close in money matters, and uncleanly in habits and dress; that he shrank from the use of water, and objected to changing his soiled clothes; that he talked of women in an obscene way, and when angry swore badly, that he played on the piano without extracting any music, and then walked around the room in a quaint, unnatural manner. These were his characteristics for months before his death, in August, 1890. Held, that a finding that deceased was sane until July 1st,-two days before he made the gift, and insane from that time until the date of his death, was against the evidence.

Department 2. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by D. W. Field, public administrator, against A. S. Shorb and others, for an accounting. Judgment for plaintiff. Defendants appeal. Reversed.

Wilson & Bulla and Stephen M. White, for appellants. W. W. Holcomb and Wells, Monroe & Lee, for respondent.

MCFARLAND, J. This action was brought by the public administrator, acting as the administrator of the estate of Daniel J. Harris, deceased; and in form it purports to be an action to obtain an accounting of the transactions between the defendants, A. S. Shorb and his wife, Mattie L. Shorb, and the said Daniel J. Harris in his lifetime. But the main averments of the complaint are that on the 13th day of May, 1890, the deceased drew a check for $500, payable to Mattie L. Shorb, and delivered the same to her; that on the 3d day of July, 1890, the deceased drew another check for $1,288.25, payable to said Mattie L. Shorb, and delivered the same to her; and that also on said 3d day of July, 1890, the said deceased delivered to said Mattie L. Shorb a certain certificate of deposit for $25,000; that said A. S. and Mattie L. Shorb claim that said two checks and said certificate were delivered to the said Mattie L. by the deceased as gifts; but that they were not given to said Mattie L. as a gift, and always remained a part of the property of the deceased until his death, and since then have been assets

of his estate. Several banking companies were also made defendants, upon averments that portions of the money collected upon said drafts and certificate are on deposit with said banking companies. Some twenty different issues were submitted to a jury. who returned specific answers to four or five of the issues, imperfect answers to two or three others, and "no answer" to the rest. The court then made findings, adopting generally the judgment of the jury where it was expressed, and upon the findings judg ment wenf in favor of the defendants for the $500 check, the court holding that it was a gift, but against the defendants as to the other check and as to the said certificate of deposit. The defendants appealed from the judgment, and from an order denying a new trial.

The complaint seems to go upon three theories: First, that the check and certifi cate were obtained from the deceased by the defendants (the Shorbs) by means of a conspiracy through which they were ob tained by undue influence exerted upon the deceased; second, that they were delivered to Mrs. Shorb merely for safe-keeping, and always remained the property of the de ceased; and, third, that at the time they were delivered, on July 3, 1890, the deceased was of unsound mind, and incapable of giv ing the said certificate and check for any purpose. About seven or eight pages of the complaint, as it appears on the printed transcript, is made up of averments of fraudulent conspiracy entered into by the Shorbs for the purpose of obtaining undue influence over the deceased, and obtaining from him the certificate and check. It is averred. with many details and frequent repetitions, that the defendants, the Shorbs, fraudulently conspired to obtain undue influence over the deceased by great exhibitions of friendship and affection, by trying to persuade the de ceased that they were his only friends, by persuading him to employ the said A. S. Shorb as his physician, by supplying him with and inducing him to use large quantities of intoxicating liquor for the purpose of weakening his mental condition, and by many other acts which tended to give them control over him; and that thus having fraudulently according to their conspiracy and plan obtained great influence over him, they induced him by solicitation to give said check and certificate to the said Mattie L. Shorb. With respect to this part of the complaint it is sufficient to say that the court found that none of the said allega tions as to said alleged conspiracy and fraudulent purpose to obtain influence over said deceased were true.

With respect to the second theory of the complaint above noticed, we suppose that the findings of the court are to be taken to mean that the said check and the said certificate were given to Mrs. Shorb on the