55 N.Y.S. 410 | N.Y. App. Div. | 1899
Section 550 of the Penal Code reads in in part as follows : “ A person, who buys or receives any stolen property, or any property which has been wrongfully appropriated in' such a manner as constitute larceny according to this chapter, knowing the same to have been -stolen or so dealt with, * * * is guilty of criminally receiving such property.” The indictment was found under this section, and charges the defendant with receiving on July 30, 1896, stolen goods, viz. a sealskin sack of the value of $150, the property of one Johannsen, then lately feloniously stolen from him, and that the defendant unlawfully and justly did feloniously receive and have the same, knowing the same to have been stolen. Uere is a clear statement that the crime was consummated on July 30th, by the defendant receiving the goods, with knowledge then existing that they were stolen ; and this is the knowledge and the time of the knowledge required by the statute, so that the proof must meet the charge as of that date. No subsequent knowledge is'charged or chargeable. Indeed, it
On the evening of March 15, 1896, a sleeveless sealskin sack valued at $150 was stolen from the store of one Johannsen, in the city of New York. On March 24th it was pledged at a pawnbroker’s shop in Philadelphia by a woman who gave her name as Goldstein, and her address as 1224 North Third street. It was proved on the trial that no such woman lived at that place, which was a vacant lot. The sum of $25 was loaned on the sack, and the woman received a ticket due to expire on J uly 24th. A day or two before that date the defendant, at some place in New York City, purchased the ticket for $5, and returned to his home in Newburgh, New York. The next day he telegraphed and wrote to the pawnbroker, inclosing the pawn ticket and money to redeem the sack, directing him to send it to Goldstein, care of Thomas Ray, at Newburgh. The package was forwarded by an express company, which delivered it on Jnly 27th to some one who called at the express office for it, and who signed an entry on the receipt book, “ Thomas Ray,” and the package was taken to the brewery of one Leicht, where the defendant was employed. It was the custom for some one from this brewery to call at the express office for packages. The express clerk did not testify, and there is no evidence, aside from the signature itself, that the defendant signed the receipt. He positively denies that he did receive or open the package at the company's office, or sign the receipt, and there is other evidence that the signature to the receipt is not in his handwriting; but there is no doubt on the evidence that the sack came into the defendant’s possession, and the question as to who signed the receipt is material only as relating to the time when the sack came into the defendant’s possession and to his knowledge of its character. Perrott, the marshal of the police in Newburgh, test fied that on July 29th he received word of the shipment of the package to Newburgh, and that on July 30th he saw the defendant, and told him that the sack which he had received had been stolen, and that he must give it up; that the, defendant demurred to this, asking where he
The defendant’s counsel bases his argument for reversal chiefly upon the grounds of errors in the charge of the court, and, further, that the course of the trial was such as to prejudice the jury, against the defendant, by innuendo and suggestion made in questions to witnesses, on the part of the district attorney. The judge charged that to make out the case of the people it was necessary that “ three facts should be established beyond any reasonable doubt: First, that the goods them
• The court also charged: “ In the first place, a man charged with crime is entitled to the presumption that the law gives him, of innocence, until the proof given on the part of the prosecution overcomes that presumption, and satisfies the jury be
“ But what shall be considered a recent possession cannot be absolutely determined by any rule, but must depend, not only upon the mere lapse of time, but upon the nature of the articles stolen, and the considerations whether they are of a description likely to pass rapidly from hand to hand, or such as the party might, from his situation in life, or the nature of his vocation, become innocently possessed of.”
Judge Doe, in State v. Hodge, 50 N. H. 517, stated an ideal instruction:
“ There is a general rule of law which finds guilt from recent possession of stolen property, but whether the possession is recent or not depends upon the nature of the property. There is no rule of law which divides the infinite varieties of property into three hundred and sixty-five or any other number of kinds, and requires you or me to draw the presumption from the possession of one kind one day after the theft, from the possession of another kind two days after, and so on to the end of the list. That allotment of time and variety is left to my j udgment;*447 and, in my judgment, the time and variety, in this case, are sufficient to raise the presumption. This presumption, found by me, is binding upon you.”
In that case a watch and chain had been stolen, and were found the next morning in a house occupied by the defendant. Tried by this rule, we think the charge of the learned county judge was not sufficiently explicit. It failed to submit to the jury the question whether the defendant’s possession of the sack was sufficiently recent to justify a conviction. The pawn ticket was an instrument which might readily pass from hand to hand, and the purchase of it by the defendant, according to his testimony, if uncuntradicted, was a sufficient explanation of his possession of the sack. The only evidence which in any way tends to contradict this explanation was the testimony of Perrott that the defendant told him that he got the ticket from a man who was in state prison while the defendant was a keeper there, and that he had met him and purchased the ticket at a saloon on Eighth avenue in the city of New York. The defendant said that he got it at B’Arcy’s saloon, on Eighth avenue, and D’Arcy, called as a witness by the state, only testified that he never saw the defendant buying a pawn ticket at his place. We do not think this amounts to a contradiction of the defendant’s explanation, and it is evident that his testimony on this subject was absolutely uncontradicted. If true, it was a sufficient explanation of his possession of the goods, and no guilty knowledge that the sack was stolen can be predicted on that possession. The indictment should have been dismissed, or an acquittal directed.
The court- also refused the request of the defendant’s counsel to charge that the stolen property must have been received by the defendant from the thief, and not from one who received it from the thief, and the defendant excepted. Mr. Wharton in his work on Criminal Law (volume 1, § 990a) lays down the proposition, and cites abundant authority for this request when he says:
“The reception must be from the thief or the thief’s agent”. In Foster v. State, 106 Ind. 272, 277, 6 N. E. 644, the court held as follows:
*448 ‘‘ To render the offense of receiving stolen goods possible, the goods must retain their stolen character at the time the party-charged received them. If, therefore, the goods have been transferred from the thief to a guilty receiver, the latter takes as a receiver, and not as a thief. In his hands, and as to him, the goods are not stolen. In his hands, the character of the goods is derived from his offense, and not from the offense of the person who stole them, so that one who receives such goods from him, however wickedly, is not guilty of receiving stolen goods within either the common law or statutory definition of that offense, unless such second or subsequent receiver receives the goods under circumstances which connect him with the thief. 2 Bish. Cr. Law, § 1140; Whart. Cr. Law, § 988; Kaufman v. State, 49 Ind. 248; Owen v. State, 52 Ind. 379. Hence, to sustain the charge of having received stolen goods, it must be proven that the goods were recived, either directly or indirectly, from the thief, knowing them to have been stolen.”
There was no evidence whatever in the case at bar to show that the man from whom the defendant purchased the ticket was the thief or his agent, or in complicity with the thief. The learned county judge also appears, by a reading of the entire charge, to have placed too much stress upon the necessity of the defendant’s explaining his possession of the goods, without giving‘sufficient weight to his right to the presumption of innocence until the close of the trial. We think that the errors referred to justify a reversal of the judgment of conviction. It is of the last importance that every person charged with crime should have a fair trial, with the continuing presumption of his innocence until the rendition of a verdict, and the charge of the learned county judge not only destroyed that presumption, but was calculated to impress the jury with the belief that the defendant was called upon to explain his possession of the goods, when the evidence gave rise to no presumption of the defendant’s knowledge that the sack was stolen at the time he purchased the ticket. We are confirmed in this conclusion by the fact that we are not clear that injustice was not done to the defendant by the numerous questions addressed by the district attorney to witnesses. It can hardly be assumed that
The judgment and conviction should Tie reversed.
WOODWARD, J., concurs.