¶1The learned trial judge, and likewise the assistant attorney-general, appear to entertain the view that evidence which proves that the defendant was found in possession of property recently stolen, and of which possession he gives no reasonable explanation, is positive and direct evidence that he committed the theft of such property, and that in such case a charge upon the rules governing circumstantial evidence is not required. We have always understood, and still understand, such evidence to be purely circumstantial when regarded as evidence to prove the guilt of the defendant. Such is the character of evidence in this case, and the court failed to instruct the jury in the rules governing in such cases; for which error the judgment is reversed and the cause remanded.
¶2Reversed and remanded.