State v. Humason

¶1[dissenting).—In my opinion, the instruction which is held to be erroneous by the majority of the court stated the law of the case. Such instruction, taken as a whole, simply told the jury that the possession of property recently stolen was a circumstance which they should take into consideration with all the other circumstances in the case, and upon such consideration determine whether or not the defendant was guilty; that if, in their judgment, the single circumstance of such possession of stolen property was sufficient to convince them, beyond a reasonable doubt, of the guilt of the accused, it alone would warrant a verdict of guilty. This is my construction of the portion of the charge to which exception is taken, and, so construed, I think it properly stated the law*. I cannot agree with the further contention of the majority that the circumstance of the possession of the stolen property was rendered immaterial by the course of the trial or by the concessions of the state. In my opinion, the judgment should be affirmed.