Supreme Court. Monroe General Term.

December, 1864.

*Johnson, J. G. Jmith*and *Welles,*Justices.

#### Ann Jones, Plaintiff in Error *v.*The People, Defendants in Error.

On the trial of an indictment for burglary and larceny, it is not erroneous for the court to charge that the finding of the stolen property in the possession of a person shortly after it was taken, is presumptive evidence of the guilt of the person in whose possession it was found, it being competent, under the indictment, to convict the prisoner either of a simple larceny or of burglary and larceny.

Nor, is it erroneous for the court in such a case to refuse to charge that the *119finding of the property in the possession of the defendant, unaccompanied by any suspicious circumstances, was no evidence that she committed the burglary, such a request may he properly refused on the ground that the proposition is too broadly stated. The possession, in such a case, would be some evidence, though not sufficient *prima facie,*of her guilt of the burglary.

Where a witness was called, who was nine years of age, and who stated that he did not know the nature of an oath, or the obligation of a witness, and had never been sworn, he was properly'excluded as incompetent; and it is not error, in such a case, for the court to refuse to instruct the witness as to the nature and obligations of an oath.

This was a writ of error to the Livingston County Court of Sessions—the questions raised are sufficiently stated in the opinion of the court.

*T. W*Havens, for plaintiff in error.

*G. J. Davis*(District Attorney), for defendants in error.

*By the Court,*Welles, J.

The plaintiff in error was indicted, tried and convicted in the court below for burglary and larceny. She was sentenced to be imprisoned in the State prison at .Sing Sing for two years at liard labor. The burglary was committed on the night of April 15,1863, by breaking into the house of Walter E. Lauder-dale, at Geneseo, Livingston county, and stealing several articles of personal property belonging to said Lauderdale. The evidence on the part of the people tended to show that the house of Dr. Lauderdale had been broken open and the personal property referred to stolen and carried away by some person or persons, some time during the night of the said 15th of April, 1863. About the 20th of the same month of April, the stolen property was found in the possession of the plaintiff in error who lived in the same village with Dr. ■ Lauderdale. The accused had washed for his family about six weeks before the property was taken.

When the stolen goods were found in her possession, it' does not appear that she made any attempt to explain how *120she came in possession of them, nor was any such attempt made at the trial. After the evidence was closed, the court charged the jury that the finding of the stolen property shortly after it was taken, is presumptive evidence of the guilt of the person in whose possession it was found, to which the counsel for the plaintiff in error excepted.

The counsel for the prisoner then asked the court to charge the jury: that the finding of the property in the possession of the defendant unaccompanied by any suspicious circumstances, was no evidence that she committed the burglary. The court refused so to charge, to which the counsel for the plaintiff in error excepted.

No error, as it seems to me, was committed either in the , charge or refusal to charge as requested. In regard to the .charge, it must be borne in mind that it was competent under the indictment to convict the prisoner either of a simple larceny, or of the burglary and larceny. It never was doubted that on a trial for larceny, after the *corpus delicti*was proved, and evidence given that the stolen goods were found in the possession of the accused, that such possession, unexplained, was *prima facie*evidence that the person in whose possession they were so found was the person who committed the larceny. The charge went no further than that.

The request to charge was too broad. It was that such possession, unaccompanied by any suspicious circumstances was *no evidence*that she committed the burglary. It certainly was some evidence of that fact, even if not sufficient *prima facie*of her guilt of the burglary. The request was to charge that it was *no evidence of such guilt.*A request to charge must as a proposition of law be perfect and embrace nothing more than the party is entitled to. The court was therefore right in refusing to charge as requested.

On the trial, after the plaintiff had rested, the defendant called as a witness, William Butler Jones, a boy nine years *121old, who stated that he did not know the nature of an oath or the obligations of a witness, and had never been sworn. The court ruled that he was not competent as a witness, and the prisoner’s counsel excepted. The prisoner’s counsel then requested the court to instruct the witness as to the nature and obligations of an oath, which the court declined, and the prisoner’s counsel excepted. In all this I think the court was right, and that the judgment should be affirmed.

Judgment affirmed.