#### SANFORD B. GREGORY v. WILLIAM RICHARDS.

Possession of a stolen article, raises a presumption of theft by the possessor, only in case such possession is so recent after the theft, as to show that the possessor could not well have come by it otherwise than by stealing it. It is not proper in a court to base instructions on a hypothesis, not sustained by the record or the'Judge’s case sent up.

This was an action of slander, tried before Dick, J., at the Spring Term, 1861, of Lincoln Superior Court.

The writ was issued on 23rd February, 1857.

*411The declaration sets forth that the defendant accused the plaintiff with stealing his bridle. Pleas — general issue, statute of limitations and justification.

The plaintiff proved that he was a man of good character, and that the defendant, on the 19th of February, 1857, said of and to the plaintiff, “you stole my bridle, and I can prove it,” also that he, the plaintiff, stole 1ns (defendant’s) bridle, and he could prove it.

The defendant introduced a witness by the name of Huffman, who stated that defendant, in 1854, was engaged in working on the plank-road, near Brevard’s iron works, and had procured from Mr. Brevard a stable, where he kept his horses and bridles; that in the month of December, 1854, Mr. Brevard made a public sale of a part of his personal property, which continued for several days, and that a number of persons attended the sale, and the plaintiff amongst the others ; that the plaintiff had a one horse-wagon with some articles for sale ; that on Tuesday morning of the sale, a sorrel horse was found in the stable of defendant, above mentioned, which the defendant locked up ; that on the night of that day, the staple of the stable door was drawn and the horse removed ; that the defendant’s bridle was left in the cutting room of the stable on the evening of the night when the stable was broken open, and that the same was missing on the next morning, and that he never saw it again until he found it in the possession of the plaintiff at Dallas, at April Court, 1855, on the same sorrel horse that had been locked up in defendant’s stable; that the defendant demanded the bridle of the plaintiff, who said that he had got a negro at Brevard’s to put up his horse, and that when it was brought out by the negro, this bridle was on it; that he had tried at the sale to get his own bridle, but could not do so, and he said further, that on his, (witness’,) stating that the bridle in question, was the property of the defendant, the plaintiff gave it up to him. The witness further stated, that the plaintiff and defendant were very unfriendly at the time of the sale aforesaid, and continued so up to the time then present.

*412The plaintiff proved by one Dellinger, that he saw the plaintiff at Brevard’s sale, with an old blind bridle in his hand, saying that he had lost his own bridle,, and had got that in its place : that he had got a negro to pat np his horse,, who had brought it out with this bridle on. itthat plaintiff esquired for Brevard’s o-verseer, and on being informed where he was, went off in the direction indicated.

lie also proved by one Gloninger, that witness heard,a conversation between plaintiff and defendant about the bridle, in which the former stated, that he had his horse put up at Brevard’s sale,, and that a negro had brought i,t out with the bridle in question on it; to which the defendant replied, “yon or the negro stole the bridle, and I don’t know -which is the worse, you or the negro.” This conversation, was in 1855, sometime after the bridle was found at Dallas..

The defendant’s counsel asked, the Court to charge the j.ury, that the bridle being found in the possession of the plaintiff at Dallas,, four months after it was lost, the law raised a presumption that he was-the thief.

The Court charged, the jury, that when an article of personal property had been stolen.,, and was proved in the possession of a person soon after the theft, the law raised a presumption that the possessor was the thief, but where several months had elapsed before the property was fqpnd, as in the present case, no such, presumption was raised. Defendant’s counsel excepted.

The defendant’s counsel excepted further,, because the Court had admitted evidence of the speaking of words.more than six months before- the bringing of the suit. Also,.because the Court had omitted to bring to the attention,of the jury a point made by him, which was t. that “ if the plaintiff had got the bridle from the negro unlawfully, and knew that it was not his own, and took it away to appropriate it to. his own use, it worrld be larceny.” His Honor said he- clid not remember that the instruction was asked in the argument, and on being assured by the counsel that it was, he asked why he was not *413reminded of it at the close of his charge; to which the counsel replied, that he did not think proper to do so.

The jury, under the instructions of the Court, found a verdict for the plaintiff for $900. Judgment for the plaintiff.Appeal by the defendant.

Gaither, for the plaintiff.

Thompson, for the defendant.

Manly, J.

The principal point of the case is under the plea of justification, and upon the instructions given as to the presumption arising from the possession of a stolen article. The instructions are in clear accordance with the law. Possession of a stolen article raises a presumption of theft by the possessor, only in case such possession is so recent after the theft, as to show that the possessor could not well have come by it otherwise than by stealing it himself. In all other cases, the question is an open one, to be decided upon the whole testimony, and the fact of possession, in the latter class of cases-,• is of greater or less cogency according to the length of time intervening — the nature of the property and other circumstances. The difference is, that the recent possession, of which we speak, throws upon the accused the burden of explaining it, else he will be taken to be the thief. In other cases, there is no such conclusion, but the fact of possession is, with the other facts, left to the jury as evidence upon the question of guilt. Thus, we distinguish between evidence raising a presumption of guilt, and evidence tending to establish guilt.

By adverting to the definition, which we have given of a recent possession, from which the presumption will be made, it will be at once, and clearly, seen, that the case before us does not admit of an application of the rule, and the Court very properly declined applying it.

Other points made below, upon a rule for a new trial, are not sustained by the record, or by the Judge’s case. There was no evidence offered, or receive^ of the speaking of the words more than six months before me bringing of the action, *414and it was not necessary, therefore, for the Court to distinguish between the purposes, for which such evidence would be admissible, and the purposes for which it would not.

So, in the second place, supposing the bridle to have been obtained from a negro, in the manner stated by the prosecutor, there was no evidence tending to show a felonious intent on the part of plaintiff at the time of obtaining it, and it would not have been proper, therefore, for the Court to base any instructions upon the hypothesis of such felonious intent.

Whether such instruction were or were not asked for, then, is not material.

There is no error, and the judgment should be affirmed.

Per Curiam,

Judgment affirmed.