A petition for rehearing having been granted this cause was again submitted to the court. We have considered the entire record with great care and conclude that the former opinion should not be disturbed other than to add the following general statement. Had the state rested after having established thecorpus delicti, that is that a burglary had been committed, and further that appellant was in the conscious possession of the recently stolen property, with knowledge that the same had been stolen, such possession being unexplained there would have been sufficient circumstances to be considered by the jury from which the guilt of the accused might be inferred. (State v.Sanford, 8 Idaho 187, 67 P. 492; State v. Bogris, 26 Idaho 587,144 P. 789; State v. Jackett, 45 Idaho 720, 264 P. 875;State v. Pate, 43 Idaho 648, 253 P. 623; State v. Davis,57 Idaho 413, 65 P.2d 1385; State v. Vanek, 59 Idaho 514,84 P.2d 567; 9 C.J. 1070, 1083.) However, the state introduced, and relies upon to support the verdict, evidence of a conversation had between appellant and a police officer. Appellant was not under oath at the time he made the statements and did not testify as a witness at the trial. The statements related by the officer, were to the effect that appellant
said he got the watch from his mother and that he then denied the first statement was true and stated that he purchased the watch from a person near the viaduct. The state having introduced this testimony and placing reliance thereon to support the verdict should be bound to whatever effect the same has on behalf of appellant, which, briefly stated, is that appellant's conscious possession of the recently stolen property was no longer unexplained. No evidence was offered on the part of the state to dispute or contradict the explanation as related by the police officer. It was not improbable, impossible nor an unreasonable explanation. In State v. Pate,supra, and kindred cases, heretofore cited, it is held thatunexplained conscious possession of recently stolen property is a circumstance to be considered by the jury from which the guilt of the accused may be inferred. The converse rule would seem to be that the explained conscious possession of recently stolen property is not sufficient as a circumstance to be considered by the jury from which the guilt of the accused may be inferred. The rule which we believe should prevail is that where the state under such circumstances introduces exculpatory evidence the burden rests upon the state to show that such exculpatory evidence is false. (State v. Pate, supra, 9 C.J. 1084; Davis v. State, 113 Tex. Crim. 404, 22 S.W. (2d) 454;Lewallen v. State, 115 Tex. Crim. 144, 29 S.W.2d 371; Reedv. State, 119 Tex. Crim. 459, 46 S.W.2d 319; Morgan v.State, 128 Tex. Crim. 290, 80 S.W.2d 975; Weathered v.State, 128 Tex. Crim. 263, 81 S.W.2d 91.) We are still of the opinion that the judgment should be reversed and the cause remanded for a new trial.
Ailshie, C.J., and Holden, J., concur.