¶1The plaintiff in error in this case was convicted of burglary, and possibly was guilty, but he moved for a new trial on several grounds, upon one of which, we think, it should have been granted.
¶2The court was requested in writing to give the following charge to the jury: “The fact that goods were found in the room occupied by two, or three, or more persons, is not conclusive evidence that the goods were in the possession of any one of them.” To this charge the judge added : “That is true, gentlemen, provided the occupants of the room all occupy it alike. But if the house was the house of one of the parties; if it was his house and his home, and he gives no explanation of it, then the law will treat it as his possession.”
¶3That goods found in a room occupied by two, or three, or more persons, is not conclusive evidence that they were in the possession of any one of them is, we think, a correct legal principle. It would certainly be a very stringent rule to put upon parties, to say that.the mere fact that goods were found in a room occupied by several, was conclusive evidence that they were in the possession of any particular one of the occupants.
¶4Numerous good and sufficient reasons exist why this should not be conclusive, and the accused was entitled to the charge as requested.
¶5Nor do we think that the supplemental charge, -under the testimony, was altogether legal. Although this house was the house and home of the accused, yet the evidence showed the fact, that it was also the home of others, and the exclusiveness of ownership and dominion over the small space to which those others exercised the right of possession and occupancy, should not have been so distinctly ignored by the judge.
¶6' Judgment reversed.