84 W. Va. 129 | W. Va. | 1919
To a judgment of conviction and confinement in the peni-. tenriarv upon an indictment charging him with the receipt •of stolon property with knowledge of the larceny thereof, Dutch Goldstrohm obtained this writ. Though the assignments of error are numerous, defendant has elected to rely ■exclusively upon two only, deeming them to be the issues most vital for the purpose of this review, and with these and none ■/other does this discussion deal. There is no substantial merit m the others, as counsel virtually concede, and they involve suo new legal questions.
■ , He first-challenges the sufficiency of the indictment, par-
After an adverse ruling upon his motion for a continuance, .defendant on April 29 tendered and the court accepted and entered of record the general issue plea, which three days later he moved for- leave to withdraw and also moved to quash
Upon the question of identification there is no substantial basis for the existence of any doubt. There is no direct or positive averment that the accused is the same person who committed both felonies, nor does the form of indictment prescribed by Archbold, Crim. Pr. & PL, p 1680, require such an averment. Omitting the usual phraseology, the form prescribed by the author shows by way of identifying the ac-. cused that he (A. B.) was presented by a former grand jury for a felony, as by the record of the indictment more fully and at large appears, and that the said A. B., after having been so convicted etc., afterwards committed another felony etc. In this respect there is not any substantial difference between the two formal accusations, though the one now before us is more elaborate, as it sets forth in extenso the felonious charge upon which defendant was convicted in 1909, and describes him as "said Dutch Goldstrohm” pursuant to the form prescribed by Archbold, thereby making perfect the identity of the person concerned, which was further substantiated by proof upon the trial. Further amplification in this regard is not required. It is sufficient if the indictment avers the former conviction with such particularity as brings the accused within the terms of the statute (section 23, eh. 152, Code) providing for the additional punishment sought by the prosecution and imposed by the judgment, and identifies the offenses by a description of their nature and character. Wilde v. Com., 2 Met. (Mass.) 408; State v. Robinson, 39
Defendant seriously, and properly we think, according to the great weight of authority, complains of the rejection of the testimony of himself and police lieutenant Fleming relative to a conversation had between them regarding defendant’s possession of the property alleged to be stolen and the manner of his acquiring it, as throwing light upon the question of his knowledge of the theft thereof at the time of its acquisition by him.
It is well settled that when a larceny is complete the voluntary abandonment of the property by the thief, no matter how soon after the larceny, is no defense. State v. Chambers, 22 W. Va. 779; Whalen v. Com., 90 Va. 544; 3 Greenleaf on Evidence (15th Ed.) § 156. Hence if it can be established that defendant bought and received the goods in this case knowing them to be stolen, the offense was complete from that moment, and the voluntary return thereof to Fleming would, therefore, be no defense. However, it is an essential ele
The property received, and purchased by defendant, con-, sisting of a valuable lorgnette, chain and revolver, was obtained by the two boys, the vendors and chief witnesses against him, from a residence burglarized by them in the city of Parkersburg shortly prior to the transaction between them and him. The burglary and-theft the boys admit, and,’ according to the testimony of one of them, not confirmed by the other, and denied by defendant, defendant was informed of the burglary and larceny before he received the property: His knowledge of the larceny is the essence of the offense charged. Unless he knew or had good cause to believe when he bought-the .property that it had been stolen, he has not violated the statute concerning the receipt of stolen prop-, erty. Its very terms make such knowledge an essential and constituent ingredient of the offense. Conversations relative to the transaction and had at the time the authorities uni-, f ormly say may be proved - either for or against the accused. People v. Dowling, 84 N. Y. 478; State v. Bethel, 97 N. Car. 459; State v. Dellvood, 88 La. Ann. 1229. What was said by him or to him at that time having any probative value is admissible as showing knowledge and intent at the time, of the receipt of the stolen goods. Also, where a person when arrested is in possession of property charged to have been stolen, his statements and declarations made at the time of the arrest and relating to the transaction are, according to. some authorities, part of the res gestae and admissible in
Nor is the proof limited, according to the great weight of authority, to the initial transaction and to the conduct and declarations of the accused at the time of his arrest, but. as said by Underhill in his work on Criminal'Evidence (2d" Ed.), recognized as being reliable and often cited: “Any declaration made by the accused explaining the reason' or character of his possession, if made while it lasts, is admissible as a part of the res gestae for or against him. * * The declaration must have been uttered at the first moment he was expressly or by necessary implication called on to explain.” (Section 302). The syllabus in State v. White, 77 Vt. 241, cited and relied on by counsel for defendant, says:’ “In a prosecution for stealing a team the respondent’s declaration that the team was not his own but was a hired team, made while the property was in his possession and before’ he knew that any suspicion attached to him or that any' search had been initiated,'is admissible in his favor.” There' are many other cases supporting the same proposition and' permitting the introduction in evidence of the acts and declarations of defendant in reference to stolen property in his, possession, and explanatory of the reason and character of such possession, both for and against him, if made at any' time while such possession continues, and especially if offered' at a time when he is first called upon by the circumstances of the case to make such explanation. Com. v. Rowe, 105 Mass. 590; Payne v. State, 57 Miss. 348; State v. Fitzgerald, 72 Vt. 142; Martin v. State, 44 Tex. Cr. Rep. 528; Walker v. State, 28 Ga. 254; State v. Young, 41 La. Ann. 94: Mason v. State, 171 Ind. 78: Smith v. State, 103 Ala. 40; Hubbard v. State, 107 Ala. 33 Bryant v. State, 116 Ala. 445; 3 Wigmore on Evidence, §1781 ; Underhill on Criminal Fmdence, (2d Ed.), § 302.
The possession by the accused of goods recently stolen, un-' explained by him, though perhaps in this state not prima facie evidence that the possessor is the thief (State v. Heaton; 23 W. Va. 773; State v. Reece, 27 W. Va. 375), is át léaái! proper to be considered by the jiiry in connection with other
Respecting the evidentiary character of the mere fact of possession of stolen goods, the author- says (§ 1781 (4) ) : ‘‘Now the inference from the fact of possession will be stranger or weaker according as the possession was not or was in good faith; if a possession in good faith can be made to appear, the inference that the possessor was himself the robber or the thief or the knowing receiver can hardly be strong. Thus the total significance of the act of possession becomes material; and upon the principle of verbal acts (ante, § 1772), the utterances of the person while in possession may be received as verbal acts (or, in the common judicial phrase, as ‘explanatory of possession’), though not as ¡hearsay assertions to evidence the fact asserted. On this principle it would be immaterial what the tenor of the ut-
What, then, is the rejected testimony and the force and effect to he attributed to it when admitted, as we think it should he upon a retrial of the case ordered. There were various phases of the offers that were refused, and as all of them are governed by the same evidentiary rule it is necessary to discuss only one of these phases. The lorgnette, chain, and automatic pistol were taken from the residence of W. C. Patterson, not by defendant, but.by the two boys who sold the property to him soon thereafter. The witness Fleming, having stated his recollection as to the date of the bur-.glaiy of the Patterson residence, was asked when with reference to the burglary the property stolen was delivered to him by defendant. This question the court refused to permit the witness to answer, as the court did also with respect to a similar auestion propounded to defendant as a witness in his behalf. As neither of them was permitted to answer in his own language, we do not know' what they would have said and must therefore rely upon what counsel proposed to prove by them. This was his proffer: “We want to show that as soon as the defendant learned that the Patterson home had been entered and these boys accused of stealing this property, the defendant immediately went to the lieutenant of police, Fleming, and turned the property over to him, and said he was afraid it was stolen property.” Nor was Fleming permitted to state whether he went to defendant or defendant came to him in regard to the property, or how Fleming learned that the lorgnette, chain and gun were in defendant’s possession. Clearly this proof was admissible.
The testimony of the two hoys introduced by the state as
What probative value is to be attached to the testimony when admitted is for the jury to answer by their verdict. It is not conclusive and counsel for defendant do not claim that it is. The jury may accord to it much, little or no weight when called upon to consider it in connection rvith the other facts and circumstances proved upon the trial. They may deem it sufficient to justify a verdict for defendant; they may deem it a mere exculpatory and unreliable story concocted to meet the exigencies of a serious situation, and give it little credence. What view they shall accept or adopt neither this court nor the trial court has authority or power to say in the'first instance.
Some contention has arisen as regards instructions given or refused, but the action thereon is n'ot reviewable because,' though copied into the record in. the form of an appendix,
Perceiving no other error, we reverse the judgment only because of the erroneous rejection of admissible evidence, and remand the ease for retrial.
'Reversed and remanded for new trial.