require a certainty that an accused person is guilty before another may proceed against him. It is enough that a felony has been committed, and the circumstances are such as to lead a reasonably prudent and cautious man to believe honestly, and without prejudice, that the accused is guilty thereof."
“(19) In determining the question of probable cause for the prosecution of Johnson, the following principles of criminal law must he‘considered by the jury, namely: The possession of personal property which has been recently stolen is prima facie evidence that the person in whose possession it is so found or traced stole the property, unless be satisfactorily explains his possession, and shows how he came by the property. If such person attempts to explain his possession of property recently stolen by statements that he bought it of an unknown person, who cannot be found, and the details of the purchase, as he gives them, are unnatural, unreasonable, or improbable, that tends to strengthen, rather than weaken, the presumption of guilt. If his statements as to such purchase from an unknown person are, in material matters, contradictory and inconsistent,—that is, not favorable to innocence; and if, after admitting the possession of property recently stolen, and attempting to account for it by purchase from an unknown person, who cannot be found, he then denies such possession altogether,—this does not tend to establish his innocence."
Conceding that the instructions asked by the defendants correctly express the law, we are clearly of the opinion that they were not prejudiced by the refusal of the court to give them. As applicable to this case, the propositions embodied in them are—First, that the possession of the stolen property by plaintiff afforded probable cause for the commencement of the prosecution, unless he had given a reasonable explanation of such possession, and, second, if the facts stated by him in explanation of his possession of the property were not consistent, or such as might reasonably be expected to occur in such a transaction, the explanation was not reasonable within the meaning of the law, and defendants were not bound to accept it, or desist from the prosecution. It may be conceded that neither of these propositions is stated, in express terms, in the instructions given, but, in substance, both are given. In the sixth instruction given, the jury were told in effect that the prosecution was not without probable cause, if the circumstances were such as to warrant a prudent and cautious man in the belief that plaintiff was guilty; and in the nineteenth they were told that his possession of the possession of the property was prima facie evidence that he was guilty, unless he had given a reasonable explanation of such possession. The jury could hardly have failed to understand from this that defendants were not bound to desist from the prosecution, unless the explanation given was reasonable, and they were left to determine that question from the circumstances proven.
4. It was shown that the defendants were members of a voluntary association, the object of which was to assist in the prosecution and bringing to justice of thieves, and other violators of the law; and there was evidence tending to prove that the association, at a meeting at which all of the defendants were present, resolved to institute a prosecution against plaintiff for the larceny of said property, and that each voted in favor of the proposition; and that a committee was appointed by the association to look up the evidence against plaintiff, and bring the case to the attention of the district attorney; and that the defendants contributed money to aid in the prosecution. It was also proven that E. V. Miller, one of the defendants, and another person, who was a member of the association, laid the case before the district attorney, and made a statement to him of what they claimed were the facts of the transaction, and this was done in obedience to the direction which had been given by the association. The district attorney then brought the case before the grand jury, and the defendants appeared before that body in obedience to subpœnas served on them, and gave testimony. There was no evidence,
