¶1The plea of autrefois convict was' defective, and was properly set aside. It did not state facts showing that this and the former prosecution for stealing the gelding were for the same offense; nor could it have done so truthfully, as shown by the evidence in this case.
¶2The defendant stole this gelding from Large, sold him to Farley, and then stole him from Farley, to whom he had sold him, and who had him in possession when he was stolen the last time.
¶3The indictment in this case alleged him to be the property of Farley, and the judge charged the jury that under such a state of facts the gelding was properly alleged to be the property of Farley in this indictment. This is complained of as erroneous, it being proved by Large that he had not then parted with the property in the gelding.
¶4The general rule on this subject is stated by Bishop to be that “ the ownership must be laid in some person who could maintain the civil action of trespass for the recovery of the property.”
¶5Farley, under the circumstances, had a right to hold the property as against every person but the true owner, Large, and if Large never demanded the horse his possession under a claim of ownership would have protected the property in his hands from the trespass of other persons having no right to it.
¶6It has therefore been held that, “if stolen goods are stolen from a thief, the goods may be alleged to belong either to the true owner or to the first thief.” (Ward v. The People, 3 Hill N. Y. Rep., 395; 6 Hill N. Y. Rep., 144; Rex v. Wilkins, 1 Leach, 4th ed., 520, 623 ; 2 Bishop’s Cr. Prac., 721, 722, and notes.)
¶7*353We are of opinion, that the court below did not err in such charge, and that the defendant was properly convicted.
¶8Judgment affirmed.
¶9Affirmed.