0

June Term, 1860.

sisting the said band to erect said building, do hereby agree
to pay to the treasurer of said band, the sums set opposite to
each of our respective names, at any time when demanded, HIGGINS et al.
on twenty days' notice."

It appears that the band was composed of twelve persons,
who had no articles of association or copartnership, nor any
legal organization, or corporate existence, but who voluntari-
ly met together to practice instrumental music, and who
were commonly known as the Palmyra Brass Band. Some
fifty or sixty persons subscribed to the subscription paper,
in sums varying from fifty cents to ten dollars. The appel-
lant Riddell, and Higgins, one of the respondents, were mem-
bers of the band, and each contributed to the erection of the
building. The hall was built upon land leased of Higgins,
by moneys paid upon the subscription, and other moneys
donated to the band, and furnished by the members. After
occupying the hall for a year or so, the band broke up and
disbanded, and Riddell became the assignee, by purchase, of
the interests in the building of nine members of the band,
and, as owner of 10-12ths thereof, claims the right to control
it. And one question arising in the case, is as to what were
the nature and character of the subscriptions paid upon the
subscription paper; were they intended to be absolute dona-
tions to the band, to enable them to build a hall in which
to practice music, and which hall was to belong to the mem-
bers composing the band, and to be disposed of as they
might think proper, after they had ceased to use it as a place
of meeting; or did the persons intend, who subscribed and
paid fifty cents, one, two or three dollars, &c., to hold and
retain an interest in the building to the extent of their re-
spective subscriptions. We have adopted the former view
of the case, and have no doubt but the moneys paid upon
the subscription paper were intended to be, and in fact were,
absolute gifts to the members of the band. It is the same,
in our judgment, as though the subscriptions had been made
to enable the members of the band to buy instruments of
music, or uniforms, or any thing of that nature. In the
latter case no one would contend that a subscriber was to
have and retain an interest in the instruments or garments

V.

RIDDELL.

1860.

V.

RIDDELL.

In re

June Term, which his subscription helped to buy. In the present case the donations were for the use and benefit of the members HIGGINS et al. of the band, to aid them in erecting a hall in which to practice music. And this hall, thus created, was undoubtedly a chattel, and in the absence of all proof to the contrary, we must presume that it belonged to the members of the band in equal parts. The members were tenants in common in the chattel. This action was commenced by Higgins and several of those who had paid upon the subscription paper, for the purpose of restraining Riddell from removing the hall (which was a frame building) from the site upon which it had been erected. If our conclusion in regard to the nature of the subscriptions is correct, it follows that the subscribers had no interest whatever in the building, and therefore had no right to join in bringing this action. Their gifts being absolute, they have no right to set up a claim to the building in which their subscriptions were invested. spect to Higgins, although he was a tenant in common with Riddell in the building, owning two-twelfths thereof, yet he cannot maintain the action, for one most conclusive reason. The building was erected upon his land. He gave a written lease of the lot, signed by himself and all the other members of the band, except two, who were minors, in which he demised the lot to the members of the band for two years from the date thereof, they yielding and paying therefor one dol lar rent. And it was expressly agreed and covenanted in the lease by and between the parties thereto, that a majority of the band should have the right to remove the building off from the land at any time during the continuance of the lease, or within twenty days after the expiration thereof, and the lessees covenanted, among other things, that they would remove said building, and give quiet and peaceable possession of the lot, within the time specified, unless the lease should be renewed by the lessor. Now, in the face of this stipulation in the lease, what right has Higgins to interpose and say the building shall not be removed? If he would otherwise have had the right to control the property, and say what disposition should be made of it, as against the wishes of Riddell, who owned the greater portion of the building,

1860.

GRAVES

V.

he certainly ought not to be permitted to object to its remov- June Term, ́ al from his lot in view of the above condition in the lease. For he had required that the building should be removed at the expiration of the lease, and had agreed that a majority THE STATE. of the band might remove it before that time, if they should think proper to do so. And now for him to interpose and ask that the building shall not be removed, is flying in the face of his own covenant. We think his mouth should be

shut upon that point.

The order of the circuit court, which restrained and enjoined the appellant from removing the building described in the complaint, must be reversed, and the cause remanded for further proceedings according to law.

GRAVES VS. THE STATE.

The presumption of guilt arising from the unexplained possession of property re-
cently stolen, is one of fact and not of law, nor of law and fact combined.
The force of such presumption is not affected by the fact that the line between
two states intervenes between the place where property was stolen and that
where it was found immediately afterwards, in the unexplained possession of
the person indicted for the theft.

A conviction for larceny will not be reversed because the court instructed the
jury that such presumption was one of law, when it does not appear that the
attention of the judge was called to the form of the expression adopted by
him, or that any specific instruction on that point was asked by the counsel
for the prisoner.

The record in this case not purporting to contain all the charge given to the jury this court may presume that in omitted portions of it, the circuit judge properly explained the nature of the presumption, leaving the jury to determine its force.

It is the practice of this court not to review questions involved in instructions given to the jury at the circuit, where it appears that the attention of the circuit judge was not fairly and explictly called to them.

ERROR to the Circuit Court for Dane County.

Graves, alias Davis, was indicted in the circuit court for Green county, for stealing a horse. venue was changed to the circuit where the prisoner was convicted.

Plea, not guilty. The court for Dane county, On the trial it appeared

GRAVES

V.

June Term, that the horse alleged to have been stolen was turned 1860. into the street by the owner, one Hurlburt, in Green county, about dusk, on the 14th of July, 1859, and on the 16th THE STATE. of that month, was in the possession of the prisoner in Lee county, Illinois (one hundred miles distant), who there gave his name as Davis, and exchanged the horse for cattle, stating that he brought the horse from Freeport, and lived near Joliet. When arrested, on the 20th of that month, he told the officer that he got the cattle at Joliet. No further statement of the evidence seems necessary to an understanding of the principles involved in the case.

The court charged the jury as follows: 1. "Did the defendant steal, take or drive away the property of Hurlburt, in the county of Green in this state, as charged in the indictment is the question for you to decide in this case." "To convict, you must believe that he did, beyond a reasonable doubt." 2. "The law presumes that the person found in the unexplained possession of property recently stolen, is the thief." 3. "If you find that the property, as described, and belonging to the person as charged in the indictment, was stolen within the county of Green, in this state, and the defendant was soon after found in the possession of that stolen property in the state of Illinois, and that possession is unexplained, the law will presume that he is guilty of the theft." To the last two of these instructions the defendant excepted.

The defendant asked the court to instruct the jury as follows: "The admission of the defendant, elicited by the prosecution, that he got the horse in Freeport, Illinois, coupled with the fact that he had possession of the horse, and traded him away, in Ogle or Lee county, Illinois, is insufficient to warrant the conclusion that the defendant had ever been in Green county in this state, and there committed the crime charged against him in this indictment. Nor would proof of the bare fact of possession of the horse in Ogle or Lee county, Illinois, by the defendant, two days after the property had been taken or stolen in Green county, be sufficient to authorize you in finding that the defendant committed larceny of the horse in Green county, in this state. The prosecution should have shown that the defendant had

June Term, 1860.

GRAVES

v.

previously resided, or been seen in this state. Proof of possession of stolen property in another state, is not proof from which it can be inferred that the person having such possession, stole him in this state. By statute, such possession in this THE State. state would be evidence of larceny committed by the possessor, in every county where such possession was." But the court refused to give said instruction, or any part thereof, and the defendant excepted to such refusal.

J. H. Knowlton and Samuel Crawford, for plaintiff in

error.

J. H. Howe, Attorney General, for the state.

By the Court, DIXON, C. J. There can be little doubt October 16. that the presumption of guilt arising from the unexplained possession of property recently stolen, is a presumption of mere fact and not of law, nor of law and fact combined, and that the strictest accuracy of language would oblige us so to name it. It is purely an inference of fact to be dealt with by the jury, and not one of law to be applied by the court, and falls strictly within Mr. Starkie's definition of natural presumptions, or presumptions of mere fact. It depends wholly upon its own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience, and is altogether independent of all artificial legal relations. For these reasons I was at first strongly inclined to the opinion that it was error for the circuit judge to instruct the jury that the law presumed the possessor, under such circumstances, to be the thief. It seemed to me that, by so doing, he did not leave it to the jury to weigh that fact, after they had found it, as a circumstance tending to establish in their minds the main fact in issue, and upon which they were to pronounce, to-wit: whether the possessor was the real thief; and that he did not leave it for them to say whether, from such recent unexplained possession, they were actually convinced in their consciences of the truth of the charge which was made against him. On the contrary, it appeared to me that the instruction, if to be understood as given by itself, and without comment or explanation, left for their consideration simply the VOL XII-38