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decided: March 25, 1974.


Appeal from order of Superior Court, Oct. T., 1971, No. 1250, affirming judgment of sentence of Court of Common Pleas of Montgomery County, Sept. T., 1968, No. 232, in case of Commonwealth of Pennsylvania v. Frank Turner.


Daniel C. Barrish, Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen concurs in the result. Mr. Justice O'Brien concurs in the result. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts.

Author: Nix

[ 456 Pa. Page 118]

Appellant was tried before a judge and jury on charges of burglary, larceny, and receiving stolen goods. A demurrer to the evidence was sustained on the charges of burglary and receiving stolen goods, and the jury found appellant guilty of larceny. Appellant's post-trial motions were denied and he was sentenced to from eighteen months to five years imprisonment. On appeal, the Superior Court affirmed, per curiam. Commonwealth v. Turner, 221 Pa. Superior Ct. 753, 289 A.2d 219 (1972). We granted allocatur and we now reverse.

The instant charges stem from the theft of blank checks from the Arch T. Flower Co. of Wyndmoor, Pennsylvania. The Commonwealth's evidence showed that in mid-February, 1968, it was discovered that checks were missing from the Flower Company and that one of the missing checks had been cashed at a local department store. At the time the stolen check was tendered for payment a photo was taken of both the check and the person seeking to cash the check, and an officer of the Flower Company identified the person in that photo as the appellant, a former employee of the company. On March 29, 1968, armed with this information, the police obtained a search warrant for appellant's apartment and, upon executing that warrant, they discovered six of the stolen checks.

[ 456 Pa. Page 119]

Appellant raises several assignments of error, but the only one that need concern us here is his attack on the validity of the "presumption of larceny from the unexplained possession of recently stolen goods." Unfortunately, courts and legal writers have propounded a plethora of definitions in their attempts to describe the basic characteristic of a presumption. In an attempt to minimize the confusion that may arise from the use of the term we will define with specificity the particular evidentiary device that we are here considering.

It must first be recognized that we are not dealing with a legal presumption. "A legal presumption is the conclusion of the law itself of the existence of one fact from others in proof, and is binding on the jury, prima facie till disproved, or conclusively, just as the law adopts the one or the other as the effect of proof." Tanner v. Hughes, 53 Pa. 289, 291 (1866). Mr. Justice Agnew classified the type of evidentiary principle that we are now considering as a presumption of fact and defined it as merely "a natural probability". Tanner v. Hughes, supra. In making the same distinction, Mr. Justice Eagen stated: "The main difficulty with this position is that appellant confuses an inference with a rebuttable presumption. A rebuttable presumption is a means by which a rule of substantive law is invoked to force the trier of fact to reach a given conclusion, once the facts constituting its hypothesis are established, absent contrary evidence. An inference is no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the experiential accuracy of the inference warrant so doing." Commonwealth v. Shaffer, 447 Pa. 91 at 105-106, 288 A.2d 727, 735 (1972). McCormick on Evidence states: "Certainly the description of a presumption as a rule that, at a minimum, shifts the burden of producing evidence is to

[ 456 Pa. Page 120]

    be preferred, . . . Inferences that a trial judge decides may reasonably be drawn from the evidence need no other description, even though the judge relies upon precedent or a statute rather than his own experience in reaching his decision. In most instances, the application of any other label to an inference will only cause confusion." McCormick, Evidence, 803-4 (2d ed. 1972).*fn1

The authors proceeded to reason that a presumption as they defined the term would be offensive to the presumption of innocence in criminal cases.*fn2 They maintain that although legal draftsmen still retain the term presumption in criminal law, it in fact refers only to a standardized inference. Thus, the total effect of the type of device at issue in this case is to permit the finder of fact to accept ...

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