OPINION OP THE COURT.
MANN, J.
— At the October, 1903, term oE the district court of the Fifth Judicial District, sitting in and for Eddy county, Garland Livingston was tried and convicted of a charge of larceny of a horse and sentenced to a term in the penitentiary, from which judgment he appeals to this court. • Five assignments of error are made and insisted upon in brief of appellant’s counsel which we will take up in their order.
1 The first ruling of which appellant complains is that of the trial court in “permitting evidence to go to the jury, which, without casting any light on the offense charged, in the indictment, tended strongly to convict the defendant of another charge, thus prejudicing him before the jury,” using the words of appellants’ counsel in his assignment of errors.
The indictment charged appellant with the theft of a horse. The evidence tended to show that the - horse charged in the indictment, together with a mule belonging to one Dunaway, was in a pasture on the owner’s premises, that appellant was seen in the vicinity of this pasture on the evening of the alleged theft, that the horse and mule disappeared at the same time and were tracked in the direction of the place where defendant was seen shortly afterwards, riding a horse similar to the one alleged to have been stolen. The trial court permitted the prosecution to introduce évidence tending to establish the theft of the mule by appellant and it is of this testimony which appellant complains..
While it is an elementary principle of law that proof of other and distinct crimes are inadmissible to aid in proving the crime charged yet where two or more crimes are committed and the transaction is one and the same, the whole transaction may be proven, even though the tendency is to prove a crime other than the one -charged. Bishop Crim. Proc. See. 1121, and eases cited. • • ■
And especially in larceny cases where other goods stolen at the same time as those described in the indictment are found in the possession of the accused, such fact is admissible in evidence, because it very clearly tends to connect the accused with the offense. 18 Am. & Eng. Ency. of Law, 2nd. Ed. 493-4; Grant v. State, 55 Ala., 201; People v. Robles, 34 Cal. 591; People v. Lopez, 59 Cal. 362; Wormley v. State, 70 Ga. 721; State v. Weaver, 104, N. Car. 758.
The evidence complained of in the first assignment of error was exactly of this nature, tending to show possession of the mule, taken at the same time as the alleged stolen horse, evidence of the larceny of one was evidence of the larceny of the other and proof of the possession of one recently after the larceny was competent to show the larceny of the other and we think that the learned trial judge was right in permitting the testimony complained of to go to the jury.
2 The second error insisted upon by appellant is “The court erred in permitting the territory to cross examine and contradict its own witness Camp.”
The record shows that. Camp was called as a witness by the prosecution and was asked certain questions on direct examination with reference to his having seen the defendant with the horse alleged to have been stolen in his possession. Camp refused to identify the horse as the one described in the indictment, whereupon the prosecuting attorney asked him if he, witness, had not made a sworn statement or affidavit in which he had stated that he had seen the defendant in possession of the stolen horse, reading the statement from the alleged affidavit of the witness. The witness then answered that he had made such a sworn statement, and that the statement was true. We think it was within the discretion of the court to permit counsel to ask these questions for the purpose of refreshing the witness’ recollection and allowing him to correct his testimony.
In Hickory v. U. S. 151 U. S. 303, the rule is thus laid down: “When a party is taken by surprise by the evidence of his 'witness, the latter may be interrogated as to* inconsistent statement previously made by him for the purpose of refreshing his memory and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness.”
We think this comes within the rule so stated and was therefore not error.
3 The third error complained of and insisted upon is the instruction of the trial court given upon his own motion and numbered 6, this instruction is as follows :
“YI. The court instructs the jury that although the law makes the- defendant in this ease a competent witness, still the jury are to be the judges of the weight which ought to be given to his testimony, and in considering what weight ought to be given to it, the jury should take into consideration all the' facts and circumstances surrounding the case, as disclosed by the evidence, and give the defendant’s testimony only such weight as they believe it to be entitled to, in view of all the facts and circumstances proven on the trial.
“You are instructed that in determining the weight to be given to the testimony of the different witnesses in this case, you are authorized to consider the interest of any of the witnesses in the result of the suit, their temper, feeling or bias, if any has been shown; their apparent intelligence, and their means of information, and to give such credit to the testimony of each witness as under all the circumstances the witnesses may seem to be entitled to.”
Counsel contended that these instructions violate the provisions of Sec. 2994 of the Compiled Laws, which forbids the court to comment upon the weight of the evidence; but we think the instructions as a whole are not subject to such objection. The court merely told the jury that the defendant was a competent witness in his own behalf and then laid down the rule by which evidence is to be weighed, subjecting the evidence of the defendant to the same test as that of other witnesses. We quite agree with counsel that it would be highly improper and perhaps reversible error to single out the defendant and call special attention to his interest in the case, but a fair construction of the above instruction does not subject it to that criticism, but fairly brings it within the rule laid down and -approved by the court in Territory v. Leyba, 47 Pac. 718 (N. M.) See also Faulkner v. Territory, 6 N M., 464; Territory v. Taylor, 11 N. M. 588.
The fourth assignment 'of error goes to the language of the court in instruction No. 3, which after instructing the jury as to the facts necessary to be proven beyond a reasonable doubt, concludes with the following words: “But if all the above facts are not proved to your satisfaction beyond a reasonable doubt, or if for any other reason you believe the defendant not guilty,.then you should find the defendant not guilty.” These words are criticised by appellant’s counsel as placing the burden of proving his innocence upon the accused.
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OPINION OP THE COURT.
MANN, J.
— At the October, 1903, term oE the district court of the Fifth Judicial District, sitting in and for Eddy county, Garland Livingston was tried and convicted of a charge of larceny of a horse and sentenced to a term in the penitentiary, from which judgment he appeals to this court. • Five assignments of error are made and insisted upon in brief of appellant’s counsel which we will take up in their order.
1 The first ruling of which appellant complains is that of the trial court in “permitting evidence to go to the jury, which, without casting any light on the offense charged, in the indictment, tended strongly to convict the defendant of another charge, thus prejudicing him before the jury,” using the words of appellants’ counsel in his assignment of errors.
The indictment charged appellant with the theft of a horse. The evidence tended to show that the - horse charged in the indictment, together with a mule belonging to one Dunaway, was in a pasture on the owner’s premises, that appellant was seen in the vicinity of this pasture on the evening of the alleged theft, that the horse and mule disappeared at the same time and were tracked in the direction of the place where defendant was seen shortly afterwards, riding a horse similar to the one alleged to have been stolen. The trial court permitted the prosecution to introduce évidence tending to establish the theft of the mule by appellant and it is of this testimony which appellant complains..
While it is an elementary principle of law that proof of other and distinct crimes are inadmissible to aid in proving the crime charged yet where two or more crimes are committed and the transaction is one and the same, the whole transaction may be proven, even though the tendency is to prove a crime other than the one -charged. Bishop Crim. Proc. See. 1121, and eases cited. • • ■
And especially in larceny cases where other goods stolen at the same time as those described in the indictment are found in the possession of the accused, such fact is admissible in evidence, because it very clearly tends to connect the accused with the offense. 18 Am. & Eng. Ency. of Law, 2nd. Ed. 493-4; Grant v. State, 55 Ala., 201; People v. Robles, 34 Cal. 591; People v. Lopez, 59 Cal. 362; Wormley v. State, 70 Ga. 721; State v. Weaver, 104, N. Car. 758.
The evidence complained of in the first assignment of error was exactly of this nature, tending to show possession of the mule, taken at the same time as the alleged stolen horse, evidence of the larceny of one was evidence of the larceny of the other and proof of the possession of one recently after the larceny was competent to show the larceny of the other and we think that the learned trial judge was right in permitting the testimony complained of to go to the jury.
2 The second error insisted upon by appellant is “The court erred in permitting the territory to cross examine and contradict its own witness Camp.”
The record shows that. Camp was called as a witness by the prosecution and was asked certain questions on direct examination with reference to his having seen the defendant with the horse alleged to have been stolen in his possession. Camp refused to identify the horse as the one described in the indictment, whereupon the prosecuting attorney asked him if he, witness, had not made a sworn statement or affidavit in which he had stated that he had seen the defendant in possession of the stolen horse, reading the statement from the alleged affidavit of the witness. The witness then answered that he had made such a sworn statement, and that the statement was true. We think it was within the discretion of the court to permit counsel to ask these questions for the purpose of refreshing the witness’ recollection and allowing him to correct his testimony.
In Hickory v. U. S. 151 U. S. 303, the rule is thus laid down: “When a party is taken by surprise by the evidence of his 'witness, the latter may be interrogated as to* inconsistent statement previously made by him for the purpose of refreshing his memory and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness.”
We think this comes within the rule so stated and was therefore not error.
3 The third error complained of and insisted upon is the instruction of the trial court given upon his own motion and numbered 6, this instruction is as follows :
“YI. The court instructs the jury that although the law makes the- defendant in this ease a competent witness, still the jury are to be the judges of the weight which ought to be given to his testimony, and in considering what weight ought to be given to it, the jury should take into consideration all the' facts and circumstances surrounding the case, as disclosed by the evidence, and give the defendant’s testimony only such weight as they believe it to be entitled to, in view of all the facts and circumstances proven on the trial.
“You are instructed that in determining the weight to be given to the testimony of the different witnesses in this case, you are authorized to consider the interest of any of the witnesses in the result of the suit, their temper, feeling or bias, if any has been shown; their apparent intelligence, and their means of information, and to give such credit to the testimony of each witness as under all the circumstances the witnesses may seem to be entitled to.”
Counsel contended that these instructions violate the provisions of Sec. 2994 of the Compiled Laws, which forbids the court to comment upon the weight of the evidence; but we think the instructions as a whole are not subject to such objection. The court merely told the jury that the defendant was a competent witness in his own behalf and then laid down the rule by which evidence is to be weighed, subjecting the evidence of the defendant to the same test as that of other witnesses. We quite agree with counsel that it would be highly improper and perhaps reversible error to single out the defendant and call special attention to his interest in the case, but a fair construction of the above instruction does not subject it to that criticism, but fairly brings it within the rule laid down and -approved by the court in Territory v. Leyba, 47 Pac. 718 (N. M.) See also Faulkner v. Territory, 6 N M., 464; Territory v. Taylor, 11 N. M. 588.
The fourth assignment 'of error goes to the language of the court in instruction No. 3, which after instructing the jury as to the facts necessary to be proven beyond a reasonable doubt, concludes with the following words: “But if all the above facts are not proved to your satisfaction beyond a reasonable doubt, or if for any other reason you believe the defendant not guilty,.then you should find the defendant not guilty.” These words are criticised by appellant’s counsel as placing the burden of proving his innocence upon the accused. But a careful examination of the instructions disclosed that the court had fully instructed the jury upon the subject of the presumption of innocence and of reasonable doubt and it is a well settled principle that where the court’s instructions as a whole fairly state the law, exceptions to remote sentences or parts of the instructions will not be maintained. Counsel cite no authorities upon this assignment and we have been unable to discover any that would justify a reversal upon that ground.
5 The last and by far the most serious question arises under the fifth assignment of error insisted upon in the appellant’s brief.
The court instructed the jury in instructions No. 4, as follows:
“IY. The court instructs the jury that the possession of recently stolen property is usually regarded in law as a criminating circumstance, tending to show that the possessor stole the property, unless the facts and circumtances surrounding or connected with such possession, or other evidence, explains or shows such possession may have been -acquired honestly. Possession of stolen property, immediately after the theft, is sufficient to warrant a con-' viction, unless attending circumstances, or other evidence so far overcome the presumption thus raised as to create á reasonable doubt of the prisoner’s guilt when an acquittal should follow.”
That any presumption of law, as to the guilt of the accused, arises from the possession of recently stolen property seems to be greatly modified by the later authorities. The establishment of any one circumstance by the evidence beyond a reasonable doubt, where the whole question of defendant’s guilt is sought to be proven by circumstantial evidence, does not and cannot overcome the presumption of innocence, in his favor. The burden of proving his innocence can never be shifted to the defendant by establishing any one circumstance in the case, but all the facts and circumstances in a case like the one at bar, must be such as to preclude any reasonable hypothesis, other than the defendant’s guilt. These principles are elementary and require no citations. Bearing in mind these primary principles of law, let us examine closely the instruction of the learned trial judge in this case and see if they have been violated. As has' already been stated, the court had instructed the jury upon the doctrine of the presumption of innocence and of reasonable doubt and the instruction above quoted must be read in connection with all the other instructions given by the court and no doubt was so read and understood by the jury. The court had fairly stated the issues of the case and carefully pointed out the matters which the jury must find to be true beyond a reasonable doubt in order to convict, in terms so plain and unequivocal that the jury could not have been misled -by the fourth instruction. We do not think the instruction complained of, when read in connection with the charge as a whole, is susceptible to the construction placed upon it by counsel. •The court told the jury in effect that the possession of recently stolen property was usually regarded as a criminating circumstance tending to establish guilt, and this is the true doctrine as laid down by the weight of authority. 18 Am. & Eng. Ency. of Law, 486; Harris v. State, 61 Miss. 304; People v. Ah. Ki. 20 Cal. 180; Robb v. State, 35 Neb. 285.
Having laid down the rule that the possession of the recently stolen property was a circumstance tending to establish guilt, the court proceeds by saying that such possession if unexplained by the facts and circumstances of the case, or other evidence is sufficient to warrant a conviction. This phrase, if taken separately, and. apart from the charge as a whole, would be error, because it is the correct rule that the jury is the sole judge as to the weight to be given to any part of the evidence, and while such possession in the light of all the facts and circumstances of the case might be sufficient to warrant a conviction, it is a question for the jury to determine and not the court. But the court had already told the jury that they were the sole judges of the weight to be given to the evidence and it is inconceivable that they could have understood this phrase in that light. We think this case comes directly in line with State v. Robbins, 65 Mo. 443, the Syllabus of which reads as follows:
"An instruction to the jury to the effect that the possession of property proven to have been recently stolen is presumptive evidence of the guilt of the party in possession unless such possession is satisfactorily explained or accounted for, is not objectionable as a commentary on the evidence or an invasion of the province of the jury, when it is accompanied by other instructions to the effect that the jury should take, into consideration all the facts shown in evidence giving to each such weight as they should consider it entitled to.” See also Stover v. People, 56 N. Y., 315; Grilley v. State, 20 Wis., 244.
We do not wish to be understood as holding that any presumption of law, as to defendant’s guilt, arises from the unexplained possession of recently stolen property, on the contrary, we believe the true rule to be that such fact when established is a circumstance to be considered by the jury the same as any other fact or circumstance and by them given such weight as they may deem it entitled to.
The judgment of the lower court is affirmed.
John E. McFie, A. J., Ira A. Abbott, A. J., concur. Parker and Pope, A. J., dissent. Mills, C. J., having tried the case below, did not sit in this case.