Mr. Chief Justice Smith
delivered the opinion of the court.
The plaintiff in error was tried and convicted in the circuit court of Hinds county upon a charge of having purchased stolen goods, the property of Redding & Peck, with a kriowl-edge-that said goods were stolen. A motion was made for a new trial, which was overruled. The bill of exceptions filed to the decision of the court overruling said motion, contains the evidence adduced on the trial, and sets out the exceptions taken by the prisoner during the progress of the trial, and the instructions, which were granted or refused at the instance of the State or the prisoner.
The exceptions brought to our attention in the argument are numerous. We shall, however, notice only such as are mainly relied on, and which present questions of practical utility.
1. It is insisted, that a new trial should have been granted, in consequence of the misconduct of a witness offered on the side of the prosecution.
It appears that, on the examination in chief of the witness referred to, the district attorney asked him what induced them to suspect that the prisoner had the stolen articles in his possession. Objection was promptly made to the legality of-this question; but in defiance of the remonstrance of the prisoner’s counsel, and while the objection was being urged before the [608]*608court, the witness proceeded to state, “ that he had been informed by a negro man, who confessed that he had stolen the said articles, that he had sold them to the prisoner. _ The court immediately instructed the jury, that the answer of the witness was not evidence, and that they should not regard it in making up their verdict.”
This conduct of the witness was certainly very reprehensible, and should have been properly noticed by the court. But we do not think it was ground for a new* trial. Certainly not, unless it were distinctly shown that the statement thus made to the jury had a sinister influence upon their verdict. It is difficult to imagine in what method such fact, if it existed, could be proved ; and hence we are compelled, from the nature of the transaction, to regard the subject as committed exclusively to the discretion of the circuit court.
2. The jury having been impanelled and sworn, upon the motion of the district attorney, the witnesses in attendance, as well for the prisoner as the State, were ordered to withdraw from the court room. The evidence for the prisoner having been closed, the district attorney proposed to examine a witness called for the prosecution, and who, with the rest, had been put under the rule, for the purpose of rebuttal. This witness, after his examination in chief, had remained in the court room, and had heard the examination of the whole of the witnesses for the prisoner. His examination was objected to by the prisoner’s counsel; but the objection was overruled, and the witness was examined. This, it is insisted, was error.
The rule on this subject appears to be settled. A witness who has been ordered to withdraw, but who continues in court in violation of the order, will not ordinarily be examined. It rests, however, in the sound discretion of the judge, whether such witness shall be examined or not. “ This (says Phillips) seems to be the safest and justest course, not to exclude his evidence altogether, but to admit it, subject to such remarks as the circumstances may warrant; for otherwise an innocent party, possibly both parties, might be made to suffer a serious injury from the carelessness of a witness,, or perhaps from his ill designs and ill will. A reluctant or hostile witness might thus [609]*609accomplish his purpose and defeat the party.” 2 Phil. Ev. 396; Hill & Cow Ed.; 4 Ib. 711, note, 361.
In .the State of North Carolina, according to the case of State v. Sparrow, the courts have not even the discretion to prevent the examination of a witness who has violated the order of the court to withdraw, and has remained and heard the testimony of the other witnesses. 3 N. Carolina R. 487.
3. Two' of the witnesses for the prosecution, Lockwood and Zimmerman, on their examination in reply, were permitted by the court to testify as to facts not strictly in rebuttal of the evidence adduced by the defendant, nor in explanation of the testimony in chief, offered by the prosecution. This was objected to on the trial, and is now assigned as error.
On the examination in chief, the party calling a witness, is bound at his peril to interrogate him as to all material matters in the first instance; and if any material question is omitted, it cannot be put upon the examination in reply. No new question can be put in reply, unconnected with the subject of the cross-examination, and which does not tend to explain it. This is the general rule, which courts of original jurisdiction have found it expedient to adopt. But it rests with them, in the exercise of a sound discretion, to determine whether the facts and circumstances of a particular case do not warrant a departure from, it. Hence, an appellate court will never interfere with the exercise of this discretion, except, perhaps, in an.extreme case, where, the injustice caused by a departure from this rule is manifest and great. In permitting the reexamination of these witnesses as to facts not in reply or rebuttal, the' court, therefore, exercised a discretionary authority; and it does not appear that any injustice was done. 4 Phil. Ev. p. 701, note, 360.
4. It is insisted, that the court erred in giving several of the instructions applied for by the district attorney, and in denying others which were requested in behalf of the prisoner. The following instruction, which was the second one given for the prosecution, is amongst those to which objection is made, to wit: “'The discovery of the goods in the possession of the defendant, (they having been proved to be stolen,) shortly after they were missed by Lockwood;. and the denial by the defend[610]*610ant that he had any such goods in his possession, is presumptive evidence that he received them knowing them to be stolen.”
There are two obvious objections to this instruction.
1st. It assumes as a fact proved, that the goods alleged to have been bought by the prisoner, were stolen. The averment that the goods were stolen, was as necessary an ingredient in the offence charged, as the allegation that the prisoner had purchased them with a knowledge of the theft. It was, in effect, a charge upon the weight of testimony, and a clear invasion upon the peculiar offices of a jury.
2d. It lays down an incorrect rule in regard to the presumption which would legally arise in the case assumed in the instruction. Generally, the fact that a party is found in the possession of stolen property recently after the commission of the larceny, is not a circumstance from which it can be legally' inferred, that the party found in possession received the property with a knowledge that it had been stolen. On the contrary, proof of such fact, connected with other circumstances, would be presumptive evidence that the party himself had committed the larceny. This is the presumption which would generally arise; but it is conceded, that there might be cases where recent possession of stolen goods, united with other' circumstances, would warrant the presumption of a felonious reception, and not of a larceny of the goods. And it was so held in the State of New York, in the case of The People v. Teal, 1 Wheeler’s Cr. Ca. 199.
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Mr. Chief Justice Smith
delivered the opinion of the court.
The plaintiff in error was tried and convicted in the circuit court of Hinds county upon a charge of having purchased stolen goods, the property of Redding & Peck, with a kriowl-edge-that said goods were stolen. A motion was made for a new trial, which was overruled. The bill of exceptions filed to the decision of the court overruling said motion, contains the evidence adduced on the trial, and sets out the exceptions taken by the prisoner during the progress of the trial, and the instructions, which were granted or refused at the instance of the State or the prisoner.
The exceptions brought to our attention in the argument are numerous. We shall, however, notice only such as are mainly relied on, and which present questions of practical utility.
1. It is insisted, that a new trial should have been granted, in consequence of the misconduct of a witness offered on the side of the prosecution.
It appears that, on the examination in chief of the witness referred to, the district attorney asked him what induced them to suspect that the prisoner had the stolen articles in his possession. Objection was promptly made to the legality of-this question; but in defiance of the remonstrance of the prisoner’s counsel, and while the objection was being urged before the [608]*608court, the witness proceeded to state, “ that he had been informed by a negro man, who confessed that he had stolen the said articles, that he had sold them to the prisoner. _ The court immediately instructed the jury, that the answer of the witness was not evidence, and that they should not regard it in making up their verdict.”
This conduct of the witness was certainly very reprehensible, and should have been properly noticed by the court. But we do not think it was ground for a new* trial. Certainly not, unless it were distinctly shown that the statement thus made to the jury had a sinister influence upon their verdict. It is difficult to imagine in what method such fact, if it existed, could be proved ; and hence we are compelled, from the nature of the transaction, to regard the subject as committed exclusively to the discretion of the circuit court.
2. The jury having been impanelled and sworn, upon the motion of the district attorney, the witnesses in attendance, as well for the prisoner as the State, were ordered to withdraw from the court room. The evidence for the prisoner having been closed, the district attorney proposed to examine a witness called for the prosecution, and who, with the rest, had been put under the rule, for the purpose of rebuttal. This witness, after his examination in chief, had remained in the court room, and had heard the examination of the whole of the witnesses for the prisoner. His examination was objected to by the prisoner’s counsel; but the objection was overruled, and the witness was examined. This, it is insisted, was error.
The rule on this subject appears to be settled. A witness who has been ordered to withdraw, but who continues in court in violation of the order, will not ordinarily be examined. It rests, however, in the sound discretion of the judge, whether such witness shall be examined or not. “ This (says Phillips) seems to be the safest and justest course, not to exclude his evidence altogether, but to admit it, subject to such remarks as the circumstances may warrant; for otherwise an innocent party, possibly both parties, might be made to suffer a serious injury from the carelessness of a witness,, or perhaps from his ill designs and ill will. A reluctant or hostile witness might thus [609]*609accomplish his purpose and defeat the party.” 2 Phil. Ev. 396; Hill & Cow Ed.; 4 Ib. 711, note, 361.
In .the State of North Carolina, according to the case of State v. Sparrow, the courts have not even the discretion to prevent the examination of a witness who has violated the order of the court to withdraw, and has remained and heard the testimony of the other witnesses. 3 N. Carolina R. 487.
3. Two' of the witnesses for the prosecution, Lockwood and Zimmerman, on their examination in reply, were permitted by the court to testify as to facts not strictly in rebuttal of the evidence adduced by the defendant, nor in explanation of the testimony in chief, offered by the prosecution. This was objected to on the trial, and is now assigned as error.
On the examination in chief, the party calling a witness, is bound at his peril to interrogate him as to all material matters in the first instance; and if any material question is omitted, it cannot be put upon the examination in reply. No new question can be put in reply, unconnected with the subject of the cross-examination, and which does not tend to explain it. This is the general rule, which courts of original jurisdiction have found it expedient to adopt. But it rests with them, in the exercise of a sound discretion, to determine whether the facts and circumstances of a particular case do not warrant a departure from, it. Hence, an appellate court will never interfere with the exercise of this discretion, except, perhaps, in an.extreme case, where, the injustice caused by a departure from this rule is manifest and great. In permitting the reexamination of these witnesses as to facts not in reply or rebuttal, the' court, therefore, exercised a discretionary authority; and it does not appear that any injustice was done. 4 Phil. Ev. p. 701, note, 360.
4. It is insisted, that the court erred in giving several of the instructions applied for by the district attorney, and in denying others which were requested in behalf of the prisoner. The following instruction, which was the second one given for the prosecution, is amongst those to which objection is made, to wit: “'The discovery of the goods in the possession of the defendant, (they having been proved to be stolen,) shortly after they were missed by Lockwood;. and the denial by the defend[610]*610ant that he had any such goods in his possession, is presumptive evidence that he received them knowing them to be stolen.”
There are two obvious objections to this instruction.
1st. It assumes as a fact proved, that the goods alleged to have been bought by the prisoner, were stolen. The averment that the goods were stolen, was as necessary an ingredient in the offence charged, as the allegation that the prisoner had purchased them with a knowledge of the theft. It was, in effect, a charge upon the weight of testimony, and a clear invasion upon the peculiar offices of a jury.
2d. It lays down an incorrect rule in regard to the presumption which would legally arise in the case assumed in the instruction. Generally, the fact that a party is found in the possession of stolen property recently after the commission of the larceny, is not a circumstance from which it can be legally' inferred, that the party found in possession received the property with a knowledge that it had been stolen. On the contrary, proof of such fact, connected with other circumstances, would be presumptive evidence that the party himself had committed the larceny. This is the presumption which would generally arise; but it is conceded, that there might be cases where recent possession of stolen goods, united with other' circumstances, would warrant the presumption of a felonious reception, and not of a larceny of the goods. And it was so held in the State of New York, in the case of The People v. Teal, 1 Wheeler’s Cr. Ca. 199. But in the case assumed by the instruction, that is, admitting it to be proved that the prisoner, within a short time after the goods were stolen, was found in possession of them, and that he denied having such goods in his possession, it is evident that the presumption would arise, that the prisoner had committed the larceny, and not as charged by the court, that he had received them with a knowledge of the larceny.
The seventh instruction for the prosecution is also excepted to. It is as follows : “ If the jury believe from the evidence, that the articles were purchased under their value, it is a pre-gumption of the guilty knowledge of the defendant.”
[611]*611The purchase of stolen goods by a party similarly charged, under circumstances calculated to awaken suspicion, and at a price greatly below 'their value, would, doubtless, constitute ground of presumption, that the party purchased with knowledge. The rule laid down by the instruction is too broad and comprehensive, and is indefensible upon reason or authority.
5. The following instruction was requested by the prisoner and refused by the court, to wit: “ The jury must take all the circumstances into consideration ; and if they believe that the defendant denied the possession of the goods, yet if they believe that such denial was not the result of conscious guilt, but of misunderstanding, or apprehension of consequences, then said denial is no evidence of guilty knowledge.”
The denial of a party having in his possession stolen goods, that he has such goods in his possession, is holden to be presumptive proof of his guilty knowledge, for the obvious reason, that if he were ignorant of the larceny, and had come by the possession fairly, he could have no motive for concealment. When, therefore, it is shown that the denial of the possession was the consequence of misunderstandings, such denial ceases :to be a presumptive proof of the guilt of the party charged. There was evidence before the jury, that the prisoner was a foreigner, and that he spoke and understood the English language imperfectly. Hence, there was some probability that he might not have understood what articles he was charged with having in his possession. The instruction contained a plain .proposition, the truth, of which was indisputable, and was warranted by the facts in proof before the jury. It was error, therefore, in the court to refuse to give it.
6. The record does not show that the prisoner was arraigned, or that he plead to the indictment. In trials for minor offences, a formal arraignment in practice is generally dispensed with. In such cases, where the defendant has plead to the indictment, an arraignment will be presumed. But a party, before he can be put upon his trial, must plead to the indictment. In civil proceedings, it is error to submit a cause to the jury without an issue in fact having been made up by parties. In prosecutions for offences, it must be equally erroneous to put a party [612]*612upon his trial, unless he has taken issue upon the charge by pleading' to the indictment.
Having determined to reverse the judgment for the errors above noticed, it has become unnecessary and improper to examine the question, whether the evidence adduced on the trial was sufficient to warrant the verdict of the jury.
Let the judgment be reversed, the prisoner remanded, and a hew trial awarded in the court below.