Thompson v. The People.

given to the fact of possession of the property by the defendants, after it was taken from the owner.

On the first point the instruction was this: "Larceny is defined to be the taking and carrying or leading away the personal property of another, without his consent and against his will, with intent to appropriate the same to the use of the taker. Hence, if the taking of the property was with the intent to convert the same to the use of the taker the offense is complete." The fault to be found with this definition is, that an important ingredient, that which distinguishes larceny from a simple trespass, is omitted, viz: the animus furandi, without which a taking is no larceny. People v. Reynolds, 2 Mich., 422. Keeley v. State, 14 Ind., 36. Larceny is not defined in our statutes, and resort must be had therefore to the common law to ascertain what its constituent elements are. "Simple larceny is the felonious taking and carrying away of the personal goods of another, with intent to deprive the owner permanently of his property therein." Broom & Hadley's Com., Vol. 2, Am. Ed., 513. The taking of the goods must be with a felonious intent, otherwise there is no larceny. State v. Gresser, 19 Mo., 247. Phelps v. The People, 55 Ill., 334.

Now admitting that the testimony before the jury fully supported the instruction above quoted, and such is the presumption where the evidence is not preserved, and that it was clearly proved that the defendants had done all that the jury were told would constitute a larceny, and authorize a verdict of guilty, it would amount only to a simple trespass, nothing more. And this being so, it is clear that this instruction was not only erroneous, but must have operated directly to the prejudice of the accused. No other conclusion would be reasonable.

The jury were further instructed that "the general rule of law is, that whenever the property of one man which has been taken from him without his knowledge or con

Thompson v. The People.

sent, is found upon, or in the possession of another, or others, it is incumbent on such person or persons in whose possession it is found to prove how they came by it; otherwise the presumption of law is that he or they obtained it feloniously." Here it will be observed that the idea is again pressed upon the attention of the jury, that the mere proof of the fact that the subject of the alleged larceny was taken from the owner "without his knowledge or consent," would make the crime complete, and if the property were found in the defendants' possession it would warrant their conviction, unless they had "proved" that they had come by it honestly.

Altogether too much importance is here given to the simple possession of the property by the accused, for even if the felonious taking were fully established, and the possession of the fruits of the larceny were the only evidence implicating the defendants in the transaction, they were not bound to "prove" how that possession came about.

There is some conflict in the authorities as to the effect to be given to the proof of possession of stolen property, but we doubt very much if one case can be found which goes to the extent of this instruction. Indeed, some authorities hold that possession alone is not sufficient, in any case, to warrant a conviction. On this point, see People v. Antonio, 27 Cal., 404. Durant v. The People, 13 Mich., 351. The better rule however seems to be, that if the possession of the stolen article be recent after the theft, such evidence is sufficient to make out a prima facie case, proper to be left to the jury, who are the sole judges of the effect that should be given to it. State v. Merrick, 19 Maine, 398. 1 Phil. on Ev., 634.

In the case of State v. Merrick, above cited, the prisoner was charged with the larceny of certain sheep, and the court in commenting on the instructions given to the jury say: "It was, in our judgment, too strong to

Thompson v. The People.

instruct the jury that they must convict the accused unless he had proved to their reasonable satisfaction that he came by the sheep otherwise than by stealing." And in this case, while it might have been impossible for the defendants to prove how they came to be possessed of the property, still, if they had succeeded in raising in the minds of the jury a reasonable doubt that they stole it, they were entitled to an acquittal.

IV. But it was urged in argument by counsel for the prosecution that, no exception having been taken to the charge in the court below, it is too late to assign these errors here as ground for a reversal of the judgment.

The rule here invoked is properly applicable in all civil cases, and quite generally in criminal cases also. But in the latter class it is not of universal application, especially in capital and other felonies, where reviewing courts not unfrequently correct errors prejudicial to the accused, or where the charge cannot be correct in any conceivable view of the case, although no objection was interposed on that ground in the court below. This instruction, as before stated, is a part of the record of the case, made so by statute, and is therefore properly before us. There is no doubt whatever that the charge as here set out was given, and the alleged errors in fact committed. It is equally certain that it had a direct tendency to prejudice the accused, no matter what the testimony may have been. Under these circumstances we deem it to be our plain duty to correct the wrong by awarding to the defendants a new trial.

In the case of Leoffner v. The State, 10 Ohio State, 598, where error was alleged in the charge to the jury on the question of insanity, and no exception had been taken, the supreme court of Ohio did not refuse on that ground to consider it. The want of such exception having been suggested, Mr. Attorney-General Walcott, representing

Frasher v. Ingham.

the state, made use of the following language which we here quote with approval: "While this seems to be the

rule in this state in civil cases, it does not comport with my conviction of duty to argue that where a charge is spread upon the record, so as to be legitimately before the reviewing court, and it is apparent that the prisoner has been vitally or substantially prejudiced by an erroneous ruling of the charge, the reviewing court ought not, suo sponte, to take notice of the error and reverse the judgment. No man's life should be forfeited because of the omission of his counsel to take exception. The interests of public justice do not, in my opinion, require, or even permit me to urge this objection against considering any error in the charge of the court."

We conceive the same rule to be appropriate in all cases of felony where the ends of justice seem to require its application. People v. Levison, 16 Cal., 98.

REVERSED AND REMANDED.

WILLIAM FRASHER AND OTHERS, PLAINTIFFS IN ERROR, v. S. A. INGHAM AND OTHERS, DEFENDANTS IN ERROR.

1. Judicial Sale. The rule of caveat emptor applies to judicial sales, because from the nature of the transaction there is no one to indemnify the purchaser for any loss he may sustain.

2.

3.

Where the sheriff by mistake, levied upon certain tracts of land covered with timber, which were appraised in the aggregate at the sum of $1,634, and plaintiff, relying upon the levy and appraisement, purchased the same for $1,090, procured a confirmation of the sale, and a deed from the sheriff, and it was afterwards discovered that the numbers of the land, levied upon and sold, did not include the timber land, but consisted of worthless sand banks on the waters edge of the Missouri river, it was held, on a petition of the purchaser to set the sale aside, that he was entitled to relief, and the rule of caveat emptor did not apply.

-: COSTS. But as the defendants did not appear to be in fault, it was held, that the costs should be taxed to plaintiff.

Frasher v. Ingham.

ERROR from the district court of Nemeha county.

E. W. Thomas and J. H. Broady, for plaintiff in error, cited Hilliard on Vendors, 584. Anderson v. Foulke, 2 Harr. & Gill., 346. 22 Barb., 167. Ritter v. Henshaw, 7 Iowa, 97. Dean v. Morris, 4 G. Greene,

312.

T. B. Stevenson, for defendants in error, cited Gatling v. Newell, 9 Ind., 572. Ruffner v. McConnell, 17 Ill., 212. Sugden on Vendors, 378. 10 Ohio State, 577. Dickerman v. Burgess, 20 Ill., 266. 6 Ohio, 477. 14 Ohio, 285. 14 Penn. State, 9.

MAXWELL, J.

The petition alleges "that on the 13th day of November, 1866, the plaintiff recovered a judgment against the defendants, for the sum of $4,003.65, and $18.63 costs; that by virtue of an execution issued out of the district court of Nemeha county, upon said judgment, dated November 27, 1867, and a venditioni exponas issued from said county on said judgment, dated April 9, 1868, and both directed to the sheriff of said county, the said sheriff did duly levy upon, appraise, advertise and sell certain real estate of the defendant, W. H. Denman, situated in said county of Nemeha, at public auction, to the plaintiffs herein, and did by mistake hereinafter set forth, include, and carry through the entire record of the proceedings under said writs, issued upon said judgment, as having been duly levied upon, appraised, advertised, and sold to the plaintiffs under said writs, the following described real estate of the defendant W. H. Denman, situated in said county, to-wit: Lot three in section twenty-six, and lot two in section thirty-five, in town seven, range fifteen east, supposed to contain 52.88 acres; that on the 18th day of September, 1868, said court con