Appellant was indicted and tried jointly with Charles W. Edwards, Jr., on three counts respectively charging grand larceny of an automobile,1 unauthorized use of that automobile,2 and grand larceny of the engine from another automobile.3 The trial, to a jury, eventuated in Edwards' acquittal on each count and appellant's conviction on all three. This appeal challenges the conviction on a number of grounds, each of which we have examined assiduously. Having done so, we find no error affecting substantial rights, and so we affirm.

* On the morning of August 5, 1966, Samuel I. Sherwood fringe-parked his 1957 Chevrolet on a public street in upper northwest Washington, and took a bus to his worksite in the city's downtown area. When he returned about 6:00 o'clock in the evening, the car was gone and was never again seen by him. Several months thereafter, on March 28, 1967, Robert L. Oates, Jr., underwent a similar experience. On that date, he parked his 1962 Chevrolet on a street in northwest Washington, and on the following morning discovered that it was missing. Three days later, on April 1, 1967, he viewed what of his car remained intact. Many of its components, including the engine, had been removed; the vehicle had been stripped to the frame.

On the night of May 5, 1967, Officers John H. Lonien and Lawrence H. Bird halted a 1957 Chevrolet that was smoking excessively and traveling without brake lights. William T. Crippen was driving the automobile and appellant sat on the front seat.4 At the request of Officer Lonien, Crippen displayed his operator's permit, and appellant produced a registration certificate from the glove compartment.5 The officer attempted to compare the number appearing on the registration certificate with the serial number on the vehicle's door plate.6 He then noticed that the plate was affixed to the car with glue, and on touch it fell off into his hand.7 Appellant, and later Edwards, were arrested.8

At the trial, the Government established a factual pattern upon which convictions of appellant and Edwards were sought. Its proof showed plainly that the two auto theft victims, Sherwood and Oates, had lost their vehicles in consequence of felonious takings.9 Expert testimony demonstrated unequivocally that the car in which appellant and Crippen were arrested was the Chevrolet stolen from Sherwood.10 It had been partially repainted, its power plant had been supplanted by the engine stolen from Oates' Chevrolet,11 and other equipment had been replaced as well.12 The serial number on the door plate, it developed, was that of an automobile purchased by appellant from John Long in early April, 1967 — about a month before his arrest — and registered, at his direction, in Edwards' name; and the seats and heater were from that automobile.13 There was testimony, too, that for some time the Sherwood vehicle was kept on a lot opposite the rear of Edwards' residence; that at a point perhaps a month before the arrests it was without an engine or transmission; that appellant and Edwards "were fixing the car;"14 and that Edwards had lent it to Crippen on several occasions.

At the conclusion of the Government's presentation, the defendants moved for judgments of acquittal.15 On denial of the motions, neither sought to testify or, aside from a stipulation and a map introduced in Edwards' behalf,16 to offer any evidence. At the Government's request, over objection by the defense, the trial judge instructed the jury, inter alia, that it was at liberty to infer guilt of the charges from the unexplained possession of recently stolen property.17 As previously stated, the jury acquitted Edwards and convicted appellant on all counts.

With us, larceny is in essence the unlawful taking and carrying away of property of another with intent to appropriate it to a use inconsistent with the latter's rights.18 Unauthorized use of a motor vehicle, though not congruent with larceny of a motor vehicle,19 similarly involves a usurpation of someone else's property.20 Consequently, we have recognized that a single taking of an automobile may offend the statutes on both offenses and authorize separate though concurrent sentences under each.21 But it goes without saying that conviction of either offense, as indeed of any crime, entails evidence having enough probative power to convince the jury beyond a reasonable doubt on every essential element, and also on the identity of the accused as a participant.22

In the case at bar, as we have noted,23 the Government's uncontradicted presentation plainly made out a larceny and an unauthorized use of Sherwood's automobile by someone, and a larceny of the engine from Oates' automobile as well. In its effort to prove that appellant and Edwards were the parties who committed those crimes, the Government relied on the inference derivable from the possession of recently stolen property.24 We have sanctioned resort to the inference for this purpose in both larceny and unauthorized use cases.25 We have also endorsed its use where the possession was of but a portion rather than all of what was stolen.26 As we have related, the trial judge instructed the jury that it might, if it saw fit, draw such an inference against appellant and his codefendant.

Appellant protests the rendition of that instruction initially on the ground that the evidence could not support a factual finding that he had such possession of the stolen items as would give rise to the inference.27 In appellant's view, he had no possession at all, and in any event none that could be characterized as exclusive. In consequence, so he argues, the inference could not properly be utilized in securing his conviction and, the Government being without direct evidence of his involvement in the offenses, his motion for a judgment of acquittal should have been honored.

As appellant emphasizes, our past decisions have frequently used the word "exclusive" to denote the kind of possession of stolen property that is prerequisite to an inference of guilt.28 That word, however, is no more than judicial shorthand for the underlying concept that the accused must bear a distinctive relationship to the property before the inference is allowed. Why this precondition is imposed, and what it necessitates, are insights that readily emerge when the anatomy of the inference is examined closely.

Recently, in our Pendergrast decision,29 we pointed out that "[t]he inference is indulged only where the accused is found in exclusive possession of property recently stolen and the possession is not otherwise explained."30 We pointed out that "[t]he inference is then permitted because its factual prerequisites, if competently established, support a logical deduction that the possession of the stolen property could have been acquired only by the possessor's theft of that property."31 "To so infer," we added, "`is but to accord to the evidence, if unexplained, its natural probative force.'"32 "Thus, upon analysis," we concluded "this inference appears simply as a result which the jury is free to reach on the basis of the circumstantial evidence which authorizes the inference."33

By no sensible measure could an inference that the accused is the party who engineered a larceny-type offense spring from an association with the stolen property that differs little or none from that borne by the general public. On the other hand, the probative force of the association grows stronger as its characteristics involve the accused more particularly. The association suffices to give the inference evidentiary value when it attains such quality that, when coupled with the other evidence, there is a probability of guilt that a prudent mind could accept as not reasonably doubtful. "Exclusive," then, in this context is not a word of art, but rather a term descriptive of a relationship to stolen property which has achieved that degree of quality.

So it is that the exclusivity requirement, it is held, may be met although the stolen property is not subject to the accused's direct physical control,34 or located on premises under his dominion.35 It may be satisfied by something less than that which in other legal contexts traditional concepts of "possession" may demand.36 It may be fulfilled, too, by a relationship to the stolen property that is shared with another so long as that relationship is significantly distinguishable from the connection others bear to the property.37

By our appraisal, the Government's proof on exclusivity in this case met these governing standards. The stolen Sherwood Chevrolet, at one time lacking an engine and transmission, had for a considerable period been stationed behind Edward's place of abode. During this period, the stolen Oates' engine had been installed therein, and seats and a heater as well. The latter items came from an automobile that lately had been bought and paid for by appellant and at his bidding registered in Edward's name. Very significantly, the serial plate had been taken from that vehicle and glued to the Sherwood car, and that car had been partially repainted. By appellant's own admission, he collaborated with Edwards in the renovation of the car.

The possession that will activate the inference of guilt may be established by circumstantial evidence.38 The facts shown by the Government bespoke a substantial relationship to the stolen properties shared by appellant and Edwards — a relationship of a type not matched by anyone else.39 To a reasonable-minded juror, they might indicate a joint enterprise involving the assembly of an automobile largely from stolen components and efforts to camouflage the true nature of the resulting product.40 It was, of course, for the jury to say, according to the staunchness of its belief on that score, whether the situation actually was as so indicated. We hold that these facts had enough probative value to warrant the jury in finding that character of possession which, united with the other evidence in the case, would authorize an inference attributing guilt to appellant.41

Appellant challenges, not only on the basis of the evidentiary display at trial but also on broad constitutional grounds, the propriety of the court's instruction incorporating the rule permitting an inference of guilt from the possession — as we have defined it — of recently stolen property. He endeavors to predicate a deprivation of due process upon the assumed nonexistence of a sufficient connection between the proved fact of that type of possession and the conditionally inferred fact that the possessor is the party responsible for the theft.42 As a practical matter, appellant continues, such an instruction runs afoul of the accused's privilege against self-incrimination,43 and improperly calls the jury's attention to a nontestifying accused's failure to take the witness stand.44 Since the jurors may have given the instruction here a leading if not the decisive role in their deliberations, it is incumbent upon us to deal with the constitutional issues appellant poses.45

We believe, however, that the fallacies enveloped within these contentions are laid bare when the conditions which must precede indulgence in the questioned inference are recalled.46 Before the jury may resort to the inference, it must first find that the Government has proved beyond a reasonable doubt every essential element of the corpus delicti.47 The jury must then find, likewise beyond a reasonable doubt, that in the commission of the offense property was stolen and that recently thereafter the accused was caught with it.48 Even if those findings are made, the inference is forbidden if the accused's possession of the stolen property is satisfactorily explained by other circumstances shown by the evidence.49 Very importantly, the only inference ever permitted is that the accused is the thief,50 and even that deduction the jury is left free to reject51 although the possession is unsatisfactorily justified, or indeed is totally unelucidated.52 And the jury must forego the inference if on the evidence as a whole it has a reasonable doubt as to the guilt of the accused.53

So dissected, and when scrutinized in the light of constitutional mandates, we think the rule of inference under discussion, in its orthodox operation, prevails over appellant's several objections. For the rule to stand, there must exist a rational bond between the facts it obliges the Government to prove and the fact it authorizes the jury to ultimately infer;54 due process is fatally lacking "if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience."55 This means that a common law rule authorizing a guilty inference, no less than "a criminal statutory presumption[,] must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed56 fact is more likely than not to flow from the proved fact on which it is made to depend."57 Beyond that, and because proof beyond a reasonable doubt is itself an indispensible ingredient of due process in criminal cases,58 a rule of inference "which passes muster when so judged [by the more-likely-than-not standard] must also satisfy the criminal `reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use."59 This latter, in such circumstances, imposes in turn the requirement that the inference authorized, standing alone, possess such potency that a jury could prudently accept it as proof of guilt to a moral certainty.60

In our view, the rule of inference under consideration, competently invoked, passes the tests both of more-likely-than-not and reasonable doubt. The facts the establishment of which preconditions utilization of the rule61 themselves warrant the deduction that the possessor of lately stolen property came by it only in consequence of the theft.62 The rule thus refines an aspect of the law of circumstantial evidence simply by describing an optional significance the jury is already at liberty to ascribe to the foundation facts.63 We are not persuaded that due process is offended by the expression of a principle "which [does] no more than `accord to the evidence, if unexplained, its natural probative force.'"64

For centuries now, jurists have accepted the unexplained possession of freshly stolen property not only as trustworthy evidence of the inferred identity of the thief,65 but also as evidence that might suffice to convince levelheaded jurors that he is indeed the guilty party.66 For perhaps as long, juries, reflecting the conscience of the community, have found, in an intensely "common sense" approach,67 that kind of possession to be convincing of the wrongdoer's identity frequently enough to bring forth convictions in a substantial percentage of the occasions on which it was tendered for consideration.68 We do not, of course, attribute the constitutional validity of the inference merely to its ancient vintage, but neither are we inclined to discount these many pages of judicial history. For us they afford a "broad ground of experience which supports the conclusion [of guilt] * * * in such a large proportion of * * * instances that a jury may be instructed that it may draw such a conclusion in the absence of any explanation."69 We hold that the link between proof of unexplained possession of recently stolen property and the allowable deduction as to who stole it measures up to the mark, and supplies all the nexus that due process demands.70

Nor can we detect in an instruction conventionally applying the rule of inference an unconstitutional burden on the accused's right to maintain his silence at trial. We cannot fairly characterize it as a comment on his failure to testify,71 nor can we regard it as illegitimate coercion to take the witness stand.72 The jury is told, we reiterate, not that it must, but only that it may, as it is swayed by the circumstances in proof, draw the inference in the absence of satisfactory explanation,73 and that an acceptable explanation dissipates the inference completely.74 That accounting, moreover, as the jury is further informed, need not come from the accused's own lips, but may proceed from any evidentiary source whatever.75 Even where, in particular instances, the accused alone is able to furnish the explication, the situation does not differ in a constitutional sense from any other wherein the accused's dilemma is generated by the eloquence of the proof lawfully mounted against him.76 As Judge Sobeloff recently stated for the Fourth Circuit when rejecting the same two contentions our appellant presses:

The inference is derived from the weight of the evidence and not from the defendant's failure to take the stand. Evidence which leaves unexplained the possession of recently stolen property may give rise to an inference of guilt. The trier of fact may accept or reject the inference, which does not affect the presumption of innocence or alter in any way the prosecution's burden of proof. It represents nothing more than a rational conclusion based on circumstantial evidence, and this not forbidden by common sense or the Constitution.77

When arrested, appellant was the passenger in a vehicle constructed from two stolen automobiles. At trial, the evidence most favorable to the Government indicated that appellant had been associated with this vehicle for one month; its components were the engine from an automobile stolen five-and-a-half weeks before appellant's arrest and the body of a 1957 Chevrolet which had been missing for nine months. These circumstances do not provide the requisite basis for inferring theft from "the exclusive possession of recently stolen property." Pendergrast v. United States, 135 U.S. App.D.C. 20, 416 F.2d 776 (1969) (emphasis added).1 Nor do they lead to the "logical deduction" that "the possession of the stolen property could have been acquired only by the possessor's theft of that property." Id. at 31, 416 F.2d at 787.

Long, a principal prosecution witness, testified that he sold appellant a reconstructed 1957 Chevrolet in April 1967, eight months after the disappearance of the Sherwood car and one week after the Oates car was taken. The car in which appellant was arrested bore the public serial number of the one purchased from Long, but its confidential numbers showed it to be the Sherwood-Oates automobile. Although Long maintained that the car he had sold was not the car in which appellant was arrested,2 he admitted that he had owned a blue and white 1957 Chevrolet (like Sherwood's) at this time and that he might have also given that car to appellant.

While the identity of the thief may be shown by circumstantial evidence,3 the effect of the instruction in the circumstances of this case was to multiply the "natural probative force"4 of the evidence by inviting the jury to hurdle a gap of eight months in the chain of evidence during which period the defendant was not shown to have had any (much less "exclusive") possession of the property. This violates elemental principles of criminal law which at the least require "substantial assurance that the presumed fact is more likely than not to flow from the proved facts on which it is made to depend." Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57 (1969); cf. United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965); Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943).

If the inference is to be measured by the higher standard of "reasonable doubt," see Turner v. United States, 396 U.S. 398, 408, 416-418, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), as the court today holds, I do not see how it can properly be invoked in this case, since the evidence adduced by the prosecution, independent of the "first aid" supplied by the inference,5 was not sufficient to allow a rational juror to find guilt beyond a reasonable doubt.6 On the prosecution's evidence it was equally possible either (1) that appellant had stolen the Sherwood and Oates automobiles, or (2) that Government witness Long had stolen them, combined the Sherwood body and the Oates engine, and then sold appellant the product, which was registered in Edwards' name and kept in his driveway, where appellant and Edwards were said to have worked on it. The ambiguous nature of this evidence does not lay the basis for the jury to infer appellant's guilt "to a moral certainty,"7 because it does not establish beyond a reasonable doubt that appellant's possession of the car could only have been acquired by his theft of the two automobiles.8