State v. LasterState v. Laster
The Ocean County grand jury returned indictments against defendant charging him with receiving stolen property, in violation of
On August 22, 1959 defendant, while driving a Plymouth sedan bearing a New York registration, was apprehended for going through a stop street in Brick Township, Ocean County. He was taken to the State Police barracks where it was ascertained that the sedan was a stolen motor vehicle.
The defense to the charge of receiving stolen goods was that the car had been borrowed. Defendant testified that he had borrowed the sedan from a friend, John Carlson, a New York resident who lived in Belmar during the summer. Carlson was never called as a witness, nor was he located. As for the escape charge, defendant attempted to justify his flight, alleging that he had been threatened and struck by the police.
Defendant assigns three grounds for reversal: (1) it was plain error, affecting his substantial rights, for the court in its charge to preclude the jury from considering the defense that the sedan had been borrowed; (2) the introduction into evidence of defendant‘s prior convictions was error; and (3) the court erred in permitting the State to introduce into evidence the jail doctor‘s report book to rebut defendant‘s contention of police brutality.
I.
The crime of receiving stolen goods under the Crimes Act of 1898 (c. 235, § 166) required proof of three things to establish guilt: that the goods were stolen, the accused received them, and at the time he received them he knew they were stolen. State v. Lisena, 129 N.J.L. 569, 571 (Sup. Ct. 1943), affirmed per curiam 131 N.J.L. 39 (E. & A. 1943). L. 1928, c. 187 (
The statute has been interpreted as creating a permissive presumption of guilty knowledge from the mere possession of stolen goods within the specified period. State v. Vigorito, 2 N.J. 185, 188 (1949); State v. Vitale, 35 N.J. Super. 568, 573 (App. Div. 1955). The statute does not shift the burden of proof, nor deprive a defendant of due process, but is merely an evidentiary rule whereby the accused must go forward with an explanation to rebut the permissive presumption. State v. Lisena, above, 129 N.J.L., at pages 571-2.
In this case defendant did not attempt to explain his possession of the automobile in one of the five ways set out in the statute, so as to rebut the presumption of guilty knowledge which the Legislature created. Instead, as noted, his explanation was that the car had been borrowed.
The question to be resolved here is whether the exceptions enumerated in the statute are the only defenses permitted to the crime of receiving stolen property. The question was raised in the Lisena case, where defendant argued that the statute deprived him of his right to interpose any defense other than gift or purchase. The court disposed of the contention by noting, simply, that “Lisena was not deprived of the right to explain his possession. He chose not to explain. He did not take the witness stand.” The question was also raised in State v. Todaro, 131 N.J.L. 430 (E. & A. 1944). Defendant there argued that there were many other methods of lawful acquisition of chattels than those specified in the statute. As to this, the court
At common law and under the Crimes Act of 1898 the accused could defend by showing the absence of any essential factor — in this case, that at the time he received the automobile he knew it was stolen property. Being a mere rule of evidence, the provisions of
“The practical effect of the presumption of guilty knowledge arising out of possession of stolen property is to require the accused to go forward with the evidence and explain his possession, the jury being
instructed that they may find him guilty in the absence of any reasonable explanation.” (Italics ours)
The statute must be read in the light of the common law and, if possible, the two should be reconciled. “Before a statute supersedes the common law, there must be some express or specific statement to that effect.” State v. Western Union Telegraph Co., 12 N.J. 468, 486 (1953), appeal denied 346 U.S. 869, 74 S.Ct. 124, 98 L.Ed. 379 (1953), citing State v. Norton, 23 N.J.L. 33, 40-41 (Sup. Ct. 1850). We conclude that the statute in no way prohibits an accused from asserting any defense he chooses. However, the State retains the benefit of the inference to be drawn from his possession of the stolen goods within one year of the stealing, and the jury should be instructed that such possession is sufficient for them to infer guilty knowledge unless the accused offers a reasonable explanation. The determination as to what is a reasonable explanation is for the jury. The statute does no more than assert that any one of the stated five explanations, if persuasively established, is reasonable.
As we have said, the Legislature in enacting
A police officer takes into his possession stolen goods in the course of making an arrest, with the intent of restoring them to the owner at the earliest possible opportunity. The State, on proof of receipt of the stolen goods by the police officer knowing them to be stolen, has proven a prima facie case. The burden then shifts to the police officer to produce evidence showing lack of felonious intent, i.e., his intention of returning the goods to the rightful owner. If he could
Another example may be drawn from the instant case. Is one who innocently borrows a stolen item from a thief with the intention of returning it to him, precluded from showing his lack of guilty knowledge or, otherwise stated, criminal intent? Such a result would be most unfair.
We apply the above discussion to the facts of this case. The trial judge read the statute to the jury in the course of his charge. After reading each subdivision he stated, and correctly so, that it was inapplicable under the facts of the case. He went on to say:
“* * * Of course, the purpose of the statute is plain. So often when people are found in possession of stolen property they will claim they bought it legitimately and they have come by it legally, properly, and, of course, this statute is intended to place upon the persons who were in possession of stolen property, the burden of showing that they acquired it legally, in other words, that they complied with the provisions of the statute in acquiring them, otherwise they may be convicted of violation of the statute of receiving stolen property or buying stolen property.”
We consider the charge inadequate because it gave no direction to the jury in its deliberations as to what weight it should give to defendant‘s claim that he had borrowed the automobile. That the jury was left unenlightened and confused is clearly evidenced by what happened when it returned to the courtroom after deliberating for 45 minutes. The trial judge was told that the jury had been “deliberating on the question of the law pertaining to possession of the stolen property and they would like to have it explicitly read to them again.” The judge read the statute and made some comment thereon. The following then took place:
“UNIDENTIFIED JUROR: But this defendant said he borrowed the car. I never heard you say one word about borrowing. You just said that —
THE COURT: Well, he was charged with having the car, this stolen automobile in his possession, that the automobile was stolen and it was found in his possession. Now, that has nothing to do with borrowing a car. You have evidence that the car was stolen. I don‘t know of anything that denies that and it was in the possession of the defendant. That apparently is admitted, so that the car was stolen and the car was in his possession within a year from the time it was stolen. Now, the statute says this, `Under those circumstances, there is sufficient evidence to authorize conviction.’ It doesn‘t say you have to convict. It says that constitutes sufficient evidence to authorize a conviction unless the accused show to the satisfaction of the jury either, a, that the property, considering the relations of the parties thereto and the circumstances thereof, was a gift to him, that the amount paid for the property represented its fair and reasonable value, that when he bought the property he knew or made inquiries sufficient to satisfy a reasonable man that the seller was in a regular and established business for dealing in property of the description of the property purchased, or that he received or bought the property — that when he received or bought the property he simultaneously with or before the receipt reported the transaction to the police authorities of the municipality in which he resided at the time of such receiving or buying.”
From this it will be seen that the defense of having borrowed the car was eliminated from the jury‘s consideration. It was in the mind of at least one of the jurors that the jury might consider the borrowing of a car as a defense to the charge.
The State points out that no objection was made to the court‘s charge, and consequently defendant‘s argument comes too late, citing
There can be little doubt that the court‘s charge did prejudice the defendant by affecting his substantial rights, and that the plain error rule should be invoked. The trial
II.
In the light of what we have just said, we need not consider any other arguments defendant directs to his conviction of having received stolen goods.
III.
Defendant claims error in the admission of the jail doctor‘s report book to rebut his claim of police brutality. He had tried to justify his abortive attempts at escape by testifying that the police had threatened and struck him, and offered in evidence by way of corroboration a bloody shirt he was wearing at the time.
In rebuttal, the State called to the stand three troopers who had been in the police barracks at the time of the alleged threats and acts of brutality, and also Charles Bottger, a jail guard at the Ocean County jail, who produced the report book in question. The book is kept by doctors attending prisoners at the jail who might require treatment. The doctor who made the entry died before trial. Under date of August 22, 1959 appears the following:
“8-22-59, Donald Laster, fell against bars and struck his nose, nose bled for a few minutes, no fracture.”
Bottger identified the entry as being in the doctor‘s handwriting. The court was satisfied that the entry had been
Defendant asserts that the report book “bears a similarity to hospital records,” and cites several authorities for the proposition that the history contained in such records is inadmissible as hearsay. He would have us consider the book as a hospital record, and argues that the entry was not admissible. We do not agree. The report book was admissible in evidence under the Uniform Business Records as Evidence Act,
The judgment of conviction for receiving stolen goods is reversed and remanded for a new trial. The conviction on the charge of escape is affirmed.