possession of stolen goods, and as to whether conviction can be sustained without additional evidence upon the subject. It is generally held, however, in larceny as well as other cases, that it is at least a circumstance to be considered, and its weight and that of any explanation given by the accused should usually be left to the jury.75 In a recent case, on the trial of a prosecution for larceny of a bill of a certain denomination, evidence that shortly after the commission of the offense the wife of the accused was in possession of a bill of the same denomination, and that she sent it by another person to the bank to be changed, was held admissible.76 It is generally incompetent to show that the accused had in his possession other goods than those stolen at the time in question." But such evidence has been held admissible in some cases for certain purposes." 78 So, where it is shown that the other goods were stolen at the same time, the recent possession of them by the accused may often be shown as tending to connect him with the offense."

"Stafford v. State, (Ga.) 48 S. E. 903; State v. Lax, (N. J.) 59 Atl. 18; State v. Ireland, (Idaho) 75 Pac. 257; State v. King, 122 Iowa 1, 96 N. W. 712; but the corpus delicti must be proved; Reg. v. Hall, 1 Cox Cr. Cas. 231; Thomas v. State, 109 Ala. 25, 19 So. 403; Hand v. State, 110 Ga. 257, 34 S. E. 286; Bailey v. State, 52 Ind. 462, 21 Am. R. 182; but this may be done by circumstantial evidence; State v. Clark, 4 Strob. L. (S. Car.) 311; State v. Peterson, 38 Kans. 204; 16 Pac. 263; Johnson v. State, 47 Ala. 62; State v. Minor, 106 Iowa 642, 77 N. W. 330; Reg. v. Burton, 6 Cox Cr. Cas. 293.

"Buckine v. State, (Ga.) 49 S. E. 257; in a prosecution for larceny where there was evidence that defendant took a gold piece of a certain denomination from witness' person while they were together in a room, and defendant was thereupon arrested, further testimony

that about half an hour after the arrest the policeman and witness returned to the room, and, upon search, found a gold piece of the same denomination secreted on the dresser, was held admissible, although the witness could not identify the particular piece of money as his own; State v. Johnson, (Wash.) 78 Pac. 903.

"Reg. v. Oddy, T. & M. 593, 5 Cox Cr. Cas. 210.

78 See, State v. Ditton, 48 Iowa 677; State v. Moore, 101 Mo. 316, 14 S. W. 182; State v. Murphy, 84 N. Car. 742; Yarborough v. State, 41 Ala. 405; State v. Robinson, 35 S. Car. 340; Slaughter v. Commonwealth, 22 Ky. L. R. 679, 58 S. W. 588.

84

§ 3059. Defenses.—As a general rule, it may be said that the defendant may introduce any proper evidence legitimately tending to prove that he did not commit the crime for which he is on trial, or to rebut the evidence introduced by the state. Thus, he may explain his possession of the stolen goods,so and upon this subject it is said in a recent text book:81 "He may prove that he bought the goods,82 that he offered to pay the owner for them,83 or that he became possessed of them, believing he was the owner's agent. These and other explanatory facts may be shown even where the defendant has failed or refused to give a satisfactory explanation of the possession of the property when it was first found in his possession.85 If the explanatory evidence creates a reasonable doubt in the minds. of the jurors that he stole the property, he should be acquitted.86 It is not absolutely requisite that the accused should prove that his possession was honest. It is sufficient to acquit him if he gives a natural, reasonable and probable explanation which the prosecution does not show to be false.87 Such an explanation may be taken as true if the state, relying upon recent possession alone, does not prove its falsity or attempt to do so.88 If the explanation is absurd, unreasonable or unsatisfactory it is the right of the jury, and often their duty, to disregard it, though no evidence in rebuttal on that point is

SO Even his own testimony; State v. Bethel, 97 N. Car. 459, 1 S. E. 551. 81 Underhill Cr. Ev., § 302.

82 Jones v. People, 12 Ill. 259; including all pertinent declarations made by himself or the vendors; People v. Dowling, 84 N. Y. 478, 485.

Hall v. State, 34 Ga. 208, 210. Lewis v. State, 29 Tex. App. 201, 15 S. W. 642; Chambers v. State, 62 Miss. 108.

64 N. W. 614; Gilmore v. State, (Tex. Cr. App.) 33 S. W. 120; Crawford v. State, 113 Ala. 661, 21 So. 64; State v. Dillon, 48 La. Ann. 1365, 20 So. 913.

87 Hart v. State, 22 Tex. App. 563, 3 S. W. 741; Garcia v. State, 26 Tex. 209, 210; State v. Moore, 101 Mo. 316, 14 S. W. 182; Jones v. State, 30 Miss. 653, 655; State v. Castor, 93 Mo. 242, 250, 5 S. W. 906; Yar

85 Harris v. State, 15 Tex. App. brough v. State, 115 Ala. 92, 22 So. 411.

86

S6 State v. Peterson, 67 Iowa 564, 567, 25 N. W. 780; Grentzinger v. State, 31 Neb. 460, 462, 48 N. W. 148; Clark v. State, 30 Tex. App. 402, 17 S. W. 942; Baker v. State, 80 Wis. 416, 50 N. W. 518; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; State v. Wilson, 95 Iowa 341, 64 N. W. 26; State v. Cross, 95 Iowa 629,

534.

88 People v. Hurley, 60 Cal. 74; Powell v. State, 11 Tex. App. 401, 402; Johnson v. State, 12 Tex. App. 385; State v. Kimble, 34 La. Ann. 392, 395; 3 Greenleaf Ev. 32; see also, Leslie v. State, 35 Fla. 171, 17 So. 555; York v. State, 17 Tex. App. 441.

91

offered.89 But when the explanation offered is reasonable and probable it must be overcome and its falsity shown by positive and definite evidence. Direct evidence is not always essential. Circumstantial evidence will answer if upon all the evidence the prosecutor shall succeed in convincing the jury of the guilt of the prisoner beyond a reasonable doubt." His declarations explaining his possession are also admissible, in a proper case, at least when part of the res gestae. But, of course, such declarations are not usually admissible when self-serving and after he has had time to concoct an explanation.92 The defendant may also prove an alibi." So, he may show that he obtained the consent of the owner, or, in some cases, of the supposed owner, and other evidence tending to show good faith, absence of any felonious intent and facts inconsistent with guilt may be competent.95 So, while slight weakness of mind or voluntary intoxication will not justify a crime, nor even excuse it, ordinarily, yet evidence thereof is admissible as bearing upon the question of intent." And the accused may likewise introduce evidence of his good character."7

Tilly v. State, 21 Fla. 242; see also, to the effect that the weight of the explanation is for the jury, State V. Ireland, (Idaho) 75 Pac. 257; State v. King, 122 Iowa 1, 96 N. W. 712.

"Franklin v. State, 37 Tex. Cr. App. 312, 39 S. W. 680; State v. Schaffer, 70 Iowa 371, 375, 30 N. W. 639; Brown v. State, 34 Tex. Cr. App. 150, 29 S. W. 772; see also, State v. Kimble, 34 La. Ann. 392; Van Straaten v. People, 26 Colo. 184, 56 Pac. 905.

91

Henderson v. State, 70 Ala. 23; Hubbard v. State, 109 Ala. 1, 19 So. 519; State v. Moore, 101 Mo. 316, 14 S. W. 182; Walker v. State, 28 Ga. 254; State v. Daley, 53 Vt. 442, 38 Am. R. 694; Reg. v. Abraham, 2 Car. & Kir. 550, 61 E. C. L. 550. 12 Cooper v. State, 63 Ala. 80; State v. Moore, 101 Mo. 316, 14 S. W. 182.

94

"State v. Sidney, 74 Mo. 390; Wilburn v. Territory, 10 N. Mex. 402, 62 Pac. 968.

"State v. Matthews, 20 Mo. 55; but see, Drumright v. State, 29 Ga. 430.

95 See, State v. Eubank, 33 Wash. 293, 74 Pac. 378; State v. Marquardsen, 7 Idaho 352, 62 Pac. 1034; People v. Cline, 74 Cal. 575, 16 Pac. 391; Jones v. State, 30 Miss. 653, 64 Am. Dec. 154; Way v. State, 35 Ind. 409.

96 Robinson v. State, 113 Ind. 510, 16 N. E. 184; see also, 36 L. R. A. 469.

97 People v. Hurley, 60 Cal. 74, 44 Am. R. 55; State v. Richart, 57 Iowa 245, 10 N. W. 657; Clackner v. State, 33 Ind. 412; Foster v. State, 52 Miss. 695; State v. Crank, 75 Mo. 406; but see, Wagner v. State, 107 Ind. 71, 7 N. E. 896.

VOL. 4 ELLIOTT Ev.-24

98

99

§ 3059a. Miscellaneous-Recent cases.-It has been held that it is sufficient in case of theft of money from a person to show that any part of the money alleged in the indictment was taken, and that the fact that the theft was committed after the time alleged is no ground for acquittal. So, where the indictment charged the stealing of one double case silver watch, and the evidence showed that the accused took from the jeweler's bench the case and works, which had been separated for the purpose of repair, it was held that the variance, if any, was not fatal. The prosecuting witness may testify to the ownership of the property.100 Although, as already shown, there must be a carrying away or taking, it is held in a recent case that there may be a conviction notwithstanding the money alleged to have been stolen by the defendant was never seen in his possession.101 It is also held in the same case that although evidence of motive was not indispensable it was nevertheless admissible, and that it was not error to admit evidence that the defendant was in debt at the time as tending to some extent to show a motive for the crime, especially as the evidence of the larceny by the defendant was largely circumstantial.

98 Green v. State, (Tex. Cr. App.) 86 S. W. 332; see also, Com. v. Dingman, 26 Pa. Super. Ct. 615.

9 Patterson v. State, (Ga.) 50 S. E. 489; see also, Crawford v. State, 94 Ga. 772, 21 S. E. 992; Payne v. State, 140 Ala. 148, 37 So. 74.

100 Bennett v. State, (Ark.) 84 S. W. 483.

101 Demmick v. United States, 135 Fed. 257. For recent cases holding the evidence sufficient to sustain a conviction, see, Crockford v. State, (Neb.) 102 N. W. 70; Territory v.

Clark, (N. Mex.) 79 Pac. 708; Davis v. Territory, (Ariz.) 80 Pac. 389; Jones v. People, (Colo.) 79 Pac. 1013; State v. Minck, (Minn.) 102 N. W. 207; State v. Mumford, (Kans.) 79 Pac. 669; Ware v. State, (Tex. Cr. App.) 84 S. W. 1065. For cases in which the evidence was held insufficient, see, Wesley V. State, (Tex. Cr. App.) 85 S. W. 802; Womack v. State, (Tex. Cr. App.) 86 S. W. 1015; Brokaw v. State, (Tex. Cr. App.) 85 S. W. 801; Bird v. State, (Fla.) 37 So. 525.

§ 3060. Generally. The subject of this chapter in so far as individual citizens and their rights and remedies are concerned has been treated in another volume.1 A definition of a public as well as a private nuisance is there given and the general subject is there treated to such an extent that comparatively little remains to be said in this connection. It may be well, however, to give another definition of a public or common nuisance and to further explain its general nature before considering the law in detail with particular reference to criminal prosecutions. A public or common nuisance is an "offense against the public order and economical regimen of the state," being either the doing of a thing to the annoyance of the citizens generally, and not merely to some particular person, or the neglecting to do a thing which the common good requires. More particularly, a common nuisance "is said to comprehend endangering the public personal safety or health; or doing, causing, occasioning, promoting, maintaining, or continuing what is noisome and offensive, or annoying and vexatious, or plainly hurtful to the public, or is a public outrage against common decency or common morality, or tends plainly and directly to the corruption of the morals, honesty, and good habits of the people; the same being without authority or justification by law."3

1Vol. III, chap 116.

22 Bouvier L. Dict. 524; 1 Hawkins P. C. 197; 4 Blackstone Comm. 166; 3 Greenleaf Ev., § 184; 8 Bacon Abridgment 223; State v. Mayor &c.,

5 Port. (Ala.) 279, 311; see also, Acme Fertilizer Co. v. State, (Ind. App.) 72 N. E. 1037; State v. Tabler, (Ind. App.) 72 N. E. 1039.

3 Report of Mass. Comr's on Cr.