a defense,130 although, as elsewhere shown, it may have an important bearing upon the question of consent. § 3109. Variance.-The essential elements of the crime should be proved substantially as laid. Where the indictment charges a rape upon a woman, evidence of sexual intercourse with a child under the age of consent, without proof that it was by force and without her consent, has been held insufficient, even though no such proof would have been necessary if the indictment had charged rape on a child under the age of consent. 131 So, it has been held that proof of an assault with intent to rape by fraud will not sustain a charge of committing an assault with intent to rape by force.132 But this would not, perhaps, be held under other statutes.188 And a conviction for rape may be had under an indictment therefor upon proof of all the essential elements, even though the child is under the age of consent, and intercourse with her would be a distinct crime if she had attempted to consent.134 v. Baskett, 111 Mo. 271, 19 S. W. 1097; Edens v. State, (Tex. Cr. App.) 43 S. W. 89; Smith v. State, 44 Tex. Cr. App. 137, 68 S. W. 995; Commonwealth V. Murphy, 165 Mass. 66, 42 N. E. 504, 30 L. R. A. 734. 120 McQuirk v. State, 84 Ala. 435, 4 So. 775; People v. Hartman, 103 Cal. 242, 37 Pac. 153; Pratt v. State, 19 Ohio St. 277. 11 Greer v. State, 50 Ind. 267; see also, State v. Erickson, 45 Wis. 86; Bishop Stat. Cr., § 487; Dick v. State, 30 Miss. 631; State v. Jackson, 30 Me. 29. 132 Ford v. State, 41 Tex. Cr. App. 270, 53 S. W. 846. 133 See, State v. Austin, 109 Iowa 118, 80 N. W. 303; Mobley v. State, 46 Miss. 501. 134 Rex v. Wedge, 5 Car. & P. 298; Reg. v. Nicholls, 10 Cox Cr. Cas. 476; Commonwealth v. Sugland, 4 Gray (Mass.) 7; State v. Gaul, 50 Conn. 578; State v. Storkey, 63 N. Car. 7; State v. Staton, 88 N. Car. 654; Vasser v. State, 55 Ala. 264; State v. Worden, 46 Conn. 349, 362, 33 Am. R. 27. § 3110. Meaning of term.-Receiving stolen goods is said to be the short name usually given to the offense of receiving any goods or chattels with the knowledge that they have been feloniously or unlawfully stolen, taken, extorted, obtained, embezzled or disposed of. But in some states the offense is committed only in case the property was stolen. And a receiver of stolen property has been defined as "one who receives into his possession or under his control, with felonious intent, any stolen goods or chattels, with knowledge that they have been stolen." At common law it seems that while so receiving stolen goods may have been a misdemeanor it did not make the receiver accessory to the theft. It is now made a substantive crime in England and some states by statute, and in a few others the receiver is an accessory after the fact.3 § 3111. Presumptions. The so-called presumption of guilt arising from the recent possession of stolen property has been held to apply to one charged with unlawfully receiving it as well as to one charged with the original taking. But it is not conclusive," 1 Black's L. Dict. 224 Am. & Eng. Ency. of Law (2d ed.) 44. 3 See for remarks on the history of the offense and statutes, Anderson v. State, 38 Fla. 3, 20 So. 765; Curran v. State, (Wyo.) 76 Pac. 577; State v. Hazard, 2 R. I. 474, 60 Am. Dec. 96. 4 People v. Weldon, 111 N. Y. 569, and it would seem that, ordinarily, the presumption, if any, other than of innocence, would be that of larceny rather than of a felonious receiving of the goods knowing them to be stolen. Failure, however, by one in possession of stolen goods to make a reasonable explanation has been held sufficient to raise a presumption, or at least an inference of guilt. But where a reasonable explanation is given it is held that no such inference arises. When the circumstances tend to show that certain stolen goods have been in the possession of the accused for a long time before their discovery it has been held that such possession may raise a presumption or inference of guilt against one charged with receiving them though such goods were not found until more than three months after they were stolen." It has been held that the possession by a person of stolen property recently after the theft raises a presumption that he stole it, but the mere fact of recent possession of stolen property, by a person who is charged with receiving stolen property, knowing it to be stolen, does not raise a presumption that he had knowledge that it was stolen.10 But recent possession in connection with other circumstances of a peculiar and suspicious character has been held sufficient to warrant a presumption, or at least an inference of guilty knowledge, if it may reasonably be inferred from the circumstances that the one in possession of the goods did not commit the larceny himself. But the mere purchase of stolen goods for less than their value does not raise a presumption of knowledge that they were stolen.12 The omission of the accused to testify in his own behalf, creates no presumption 19 N. E. 279; see also, Sahlinger v. State v. Pomeroy, 30 Ore. 16, 46 'See, Durant v. People, 13 Mich. 351; Sartorious v. State, 24 Miss. 602; State v. Bulla, 89 Mo. 595, 1 S. W. 764; Trail v. State, (Tex. Cr. App.) 57 S. W. 92. In, State v. Richmond, (Mo.) 84 S. W. 880; the case of State v. Guild, 149 Mo. 370, 50 S. W. 909, 73 Am. St. 395, which disapproved, State v. Bulla, supra, is itself disapproved, and the doctrine of the older case again af firmed. See also, Reg. v. Oddy, 5 Cox Cr. Cas. 210. 7 Huggins v. People, 135 Ill. 243, 25 N. E. 1002, 25 Am. St. 357; State v. Mayer, 45 Iowa 698; State v. Miller, 159 Mo. 113, 60 S. W. 67. Williams v. State, 29 Tex. App. 167, 15 S. W. 285; Estes v. State, 23 Tex. App. 600, 5 S. W. 176. 'Jenkins v. State, 62 Wis. 49, 21 N. W. 232. 10 State v. Bulla, 89 Mo. 595, 1 S. W. 764. 11 State v. Mayer, 45 Iowa 698; Goldstein v. People, 82 N. Y. 231; Sartorious v. State, 24 Miss. 602. 12 Sartorious v. State, 24 Miss. against him, yet his failure to account in any way for his possession of a large sum of money may be a significant circumstance to be considered by the jury.13 It has been held in some cases that the fact that the accused knew the goods to have been stolen is, in the absence of other evidence, conclusive proof that he received the same with intent to defraud the owner.14 But in a number of jurisdictions it is held that the presumption, if any, against the accused, arising from recent possession of goods is that the possessor is guilty of larceny and not a felonious reception.15 § 3112. Burden of proof.-The burden or proof, as in other crimes, is on the prosecution to establish the guilt of the accused.16 But the burden of showing that one was not properly convicted as a thief is upon the one who has received the goods when the record of the conviction and sentence of such thief is introduced in evidence, if that question can be gone into at all. The general rule, however, is that the burden is upon the prosecution to establish every essential element of the crime and ultimately convince the jury of the guilt of the accused beyond a reasonable doubt. § 3113. Burden of proof-Essential elements and material facts. The essential elements of the crime and the material facts to be proved by the state are in general, (1) the larceny of the goods by some thief; (2) the subsequent reception of the stolen goods by the prisoner; (3) that he knew at the time that they were stolen.18 Proof that the goods were actually stolen is essential, and the mere possession of them by another than the owner has no tendency in itself, it is said, to prove that fact.19 Neither can the theft be proved as against a person charged with receiving the stolen goods by the confession or declarations of the thief.20 The fact that defendant knew the goods 13 Jenkins v. State, 62 Wis. 49, 21 N. W. 232. 14 United States v. Lowenstein, 21 D. C. 515. 15 Sisk v. State, (Tex. Cr. App.) 42 S. W. 985; State v. Bulla, 89 Mo. 595, 1 S. W. 764; Sartorious v. State, 24 Miss. 602; People v. Weldon, 111 N. Y. 569, 19 N. E. 279. 16 Anderson v. State, 63 Ga. 675. The state must show that the goods were, in fact, stolen goods. State v. Kinder, 22 Mont. 516, 57 Pac. 94. 17 Coxwell v. State, 66 Ga. 309; Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. 712; Anderson v. State, 63 Ga. 675. 18 Reilley v. State, 14 Ind. 217. to be stolen when he received them must be affirmatively proved,21 but his guilty knowledge may be inferred from circumstances.22 And the fact that they were concealed in the defendant's house in places where such goods would not ordinarily be kept has been held competent evidence of guilty knowledge.23 It has also been held in some jurisdictions that it must also be shown that the goods were received either directly or indirectly from the thief," and that any allegations as to the identity of the thief must be proved as laid.25 But the weight of authority, under most of the statutes, is to the effect that one may be guilty of receiving stolen goods, although he receives them from some person other than the person who committed the larceny, and that, if it is properly shown that they are stolen goods, and the other elements of the crime are established, the name of the thief is immaterial. It is also held in the Wyoming case cited in support of the last proposition that it was not essential that the larceny should have been committed in that state if the stolen goods were received there with guilty knowledge. 26 § 3114. Knowledge that goods were stolen.-All the facts and circumstances from which the inference of guilty knowledge arises are, in general, competent to prove such knowledge.27 It may be inferred from circumstances leading a reasonable man to believe that the goods were stolen.28 Thus, the fact that a party received stolen "Robinson v. State, 84 Ind. 452; Foster v. State, 106 Ind. 272, 6 N. E. 641. 27 Huggins v. People, 135 Ill. 243, 25 N. E. 1002, 25 Am. St. 357; People v. Schooley, 149 N. Y. 99, 43 N. Goodman v. State, 141 Ind. 35, E. 536, aff'g 89 Hun (N. Y.) 391, 35 39 N. E. 939. N. Y. S. 429; Commonwealth v. 23 Semon v. State, 158 Ind. 55, 62 Billings, 167 Mass. 283, 45 N. E. N. D. 625. 21 Foster v. State, 106 Ind. 272, 278, 6 N. E. 641; State v. Ives, 13 Ired. L. (N. Car.) 338. 25 Foster v. State, 106 Ind. 272, 6 N. E. 641; Semon v. State, 158 Ind. 55, 62 N. E. 625. Curran v. State, (Wyo.) 76 Pac. 577; Smith v. State, 59 Ohio St. 350, 52 N. E. 826; People v. Clausen, 120 Cal. 381, 52 Pac. 658; Kirby v. United States, 174 U. S. 47, 19 Sup. Ct. 574; State v. Fink, (Mo.) 84 S. W. 921; Levi v. State, 14 Neb. 1, 14 N. W. 543. 910; Murio v. State, 31 Tex. Cr. App. 210, 20 S. W. 356; People v. Clausen, 120 Cal. 381, 52 Pac. 658; Licette v. State, 75 Ga. 253; State v. Guild, 149 Mo. 370, 50 S. W. 909 (conduct and attempt to escape). 28 Birdsong v. State, (Ga.) 48 S. E. 329; Delahoyde v. People, 212 Ill. 554, 72 N. E. 732. In, Cobb v. State, 76 Ga. 664, it is said: "Circumstances may convict of the defendant's knowledge, as well as actual and direct proof. . . The circumstances, the time, the secrecy, all the transactions before, at the |