174 Wis. 80 | Wis. | 1921
The defendant in error was prosecuted and convicted for a violation of the following statute:
“Section 4417. Any person who shall buy, receive, conceal or aid in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall receive the same punishment as is hereinbefore provided for the stealing of such money, goods or property; and in any prosecution for such offense it shall not he necessary to aver or prove that the person who stole the same has been convicted.”
The portion of the charge quoted above and of which the defendant in error has complained would warrant a jury in returning a verdict of guilty if they believed that the facts and circumstances of this particular case were such that the defendant in the exercise of ordinary diligence ought to have known that the automobile left with him by Reynolds and Higgins had been stolen.
That guilty knowledge, or its equivalent, guilty belief, is of the gist of this offense has been declared by many decisions, among others the following: People v. Tantenella (Mich.) 180 N. W. 474; People v. Lintz, 203 Mich. 683, 169 N. W. 918; People v. Grove, 284 Ill. 429, 120 N. E. 277; Weinberg v. People, 208 Ill. 15, 19, 69 N. E. 936; State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. n. s. 833, with note; 17 Ruling Case Law, 85.
It is argued in support of the charge given by thé court that it is warranted by what was said in the case of State v. Jacobs, 167 Wis. 299, 301, 166 N. W. 324. In that case, jjivolving a prosecution under the same statute as here, but a portion of the entire charge was printed in the statement of facts. The effect of the entire charge was to convey to the jury the understanding that there must be a finding by
It is urged that in any event such an error in the charge is not, under sec. 3072m, Stats., sufficient to warrant a reversal of the conviction and a new trial. The evidence in this case is of such a nature and dependent so largely upon the testimony of the thief that we do not feel justified in saying that; with such a substantial error in the charge to the jury, prejudice did not result to the defendant. His substantial rights were affected, and for that reason there must be a new trial.
Several assignments of error have been urged with reference to the admission of certain evidence concerning the meaning of an expression claimed to have been used by Reynolds at the time the automobile was brought to defendant’s premises and also as to a telephone communication alleged to have been had later in the afternoon of the same day between Higgins and defendant. We find no error in the admission of this evidence.
Affidavits were presented on the motion for a new trial as to certain statements alleged to have been made by Reynolds and not known to defendant or his counsel until after the trial. An examination of the same, however, satisfies
By the Court. — Judgment reversed.