¶1 If the defendant Tolleson had reasonable grounds for believing, and did believe that the plaintiff Jackson stole the rim and tire in question from the owner, or received it from a third person, knowing it had been stolen, and with no intention to return it to the owner, there existed probable cause for arresting Jackson, and the arrest was not unlawful, though made without a warrant; the theft in question being a felony. Section 3263, Code of 1923; Rich v. McInerny, 103 Ala. 345, 354, 15 So. 663, 49 Am. St. Rep. 32.
¶2 "It is the settled law of this state that the recent possession of stolen goods imposes on the possessor the onus of explaining the possession; and, if he fails to make a reasonable explanation, raises a presumption of guilt, which will support a verdict of conviction.” Martin v. State, 104 Ala. 71, 78, 16 So. 82, 85; Cooper v. State, 87 Ala. 135, 6 So. 303; Malachi v. State, 89 Ala. 134, 8 So. 104; Orr v. State, 107 Ala. 35, 39, 18 So. 142; Boyd v. State, 150 Ala. 101, 105, 43 So. 204.
¶3 While, as held by our decisions, the unexplained possession of recently stolen property —there being a failure to make a ¡reasonable explanation after being properly called upon to do so — will authorize a presumption that the possessor either stole it himself, or received it from the thief, with knowledge that it had been stolen; yet the issue of guilt beyond a reasonable doubt must be submitted to the jury as a question of fact. Orr v. State, supra.
¶4 But the presumption of guilt under those circumstances is, as a matter of law, a sufficient basis for an arresting officer’s conclusion of guilt, and hence will serve as a justification for making the arrest. It in fact supplies the element of probable cause, and renders the arrest both reasonable and lawful. Sperier v. Ott, 6 Orleans App. 327; Wilson v. King, 39 N. Y. Super. 384.
¶5 Refused charges 6, 8, 9, and 17, are all grounded on this proposition, and each asserts and applies a correct principle of law. The errojr of their refusal is not cured by any other instruction given to the jury fairly covering the principle and its application. The nearest approach is in charge numbered 3, given at defendants’ request, the equivalence of. which is, however, destroyed by the double condition there predicated that plaintiff did not and could not give a satisfactory explanation of his possession. The officer’s conclusion of guilt would rest on the actual failure, and not the abstract inability, of the accused person to give a reasonable explanation.
¶6 The assignments of error present for review some fifty or sixty rulings on the evidence. Most of these áre without merit, and none of them, as we view the ease, had any influence upon the verdict. In general, all that was said by the arresting officer at the time of making the arrest, together with the replies of the accused, so far as such-conversation was pertinent to the arrest and its incidents, was admissible in evidence as res gestse; Rich v. Mclnerny, 103 Ala. 345, 356, 15 So. 663, 49 Am. St. Rep. 32.
¶7 If, as plaintiff testified, his house was searched after his arrest upon his own insistence, the fact of the search was irrelevant, so far as damages were concerned; nor was it competent evidence for plaintiff, as tending to show a consciousness of innocence on his part. Evidence of.such a search should have been excluded.
¶8 Other questions of evidence are not of sufficient importance to justify discussion.
¶9 Let the judgment be reversed and the cause remanded for another trial.
¶10 Reversed and remanded.