Roberts & Williams v. State

STONE, J. To justify a conviction in this case, it was essential that the jury should have been convinced beyond a reasonable doubt that the goods alleged to have been stolen had been feloniously taken and carried away. This necessarily implies that they had not been sold by any person authorized to sell them; and, of this negative fact, the jury must inquire, before the principle could be invoked or applied, that goods recently stolen, found in the possession of the accused, casts on him the duty of explaining how they came into his possession. But, as we have said, this is a negative fact, and it is usually difficult to make direct proof of a negative. In criminal prosecutions, almost or quite any material fact may be proven by circumstances, if sufficiently pertinent and connected. And when so pertinent and connected, they may produce conviction quite as strong and satisfactory, as the positive testimony of witnesses. In the present case there were many circumstances calculated to throw distrust over the possession of the defendants. These it was the duty of the jury to scan narrowly. If the [406] prisoners came by the goods by honest purchase, this fact was more easily susceptible of proof by them, than was its negative by the prosecution. All the circumstances tending to throw distrust over the possession of defendants, tended to prove the goods had been stolen. We do not think the-testimony on this point was so weak, that it should not have been submitted to the jury; nor do we think it was necessary, as a legal proposition, that the prosecution should have introduced all the clerks in the store, and proved by them severally, that they did not sell the silks. Had this been done, it certainly would have made a more clearly convincing case for the State; and a failure to do so would probably be commented on by counsel in defense. It did not require the court to take the case from the jury, or to instruct them to acquit. The pith of the charge asked and refused is, that if the evidence fails to show that neither of said persons— [the proprietor and clerks — ]sold or disposed of the goods mentioned in the indictment, . . then they, [the jury,] should find the defendants not guilty.” This charge, if given without explanation, would convey the impression to the common mind that it was the duty of the prosecution to make positive proof that neither of said persons had sold or • disposed of the goods. This would have misled the jury, and under all our rulings, the City Court was justified in refusing it. — Tomkins v. The State, 32 Ala. 569; Harrington v. The State, 36 Ala. 236; McWilliams v. Rodgers, 56 Ala. 87; Clark’s Manual of Cr. Law, § 995. Judgment of the City Court affirmed.