110 P. 83 | Mont. | 1910
delivered the opinion of the court.
The defendant, charged by information with the crime of receiving for his own gain stolen property, knowing the same to .have been stolen, was found guilty and sentenced for a term of six months in the county jail. He has appealed from the judgment.
The charging part of the information is the following: “That at the county of Silver Bow, state of Montana, on or about the second day of July, A. D. 1909, and before the filing of this information, the said defendant, Edward Moxley, did willfully, and unlawfully, and feloniously, and for his own gain, and to
The evidence introduced on behalf of the state may be summarized as follows: On July 2, 1909, E. G. Johnson, Charles Johnson, and C. M. Eude were employed as carpenters in one of the school buildings in the city of Butte. When they quit work for the day they left their tools, consisting of planes, hammers, saws, levels, chisels, etc., together in a chest or box. On their return on the following morning to resume work, the chest and tools were gone. Some of the tools belonging to E. G. Johnson were stamped with his name. About two weeks afterward Johnson found on exhibition in a showcase in a secondhand store, owned by one Neyman, a pair of pliers which he identified as his. He thereupon, aided by an officer armed with a search-warrant, searched the place and among a great variety of other similar articles found most of his tools. The name had been erased from them. The erasures were apparent. He also found a square belonging to Eude, and two handsaws belonging to Charles Johnson. These articles were all identified by the respective owners as among the lot of tools left by them together in the school building, and were exhibited to the jury. On. the morning of July 3 the defendant went to Neyman’s place and, finding Neyman’s son in charge, told him that he had some tools to sell. Young Neyman told him that he would be down to his house on the next morning to examine them. The store was to be closed the next day because it was Sunday. Neyman went to the place according to agreement, and after some conversation bought the lot of tools for $7.50 and took
The defendant was examined as a witness in his own behalf. He stated that he had received the tools on June 28 from a man by the name of Thornton, who lived next door to him on Mercury street; that Thornton was employed doing odd jobs in the neighborhood, and on that particular day was engaged at some carpenter repair work for a man by the name of Kipp, across the street; that Thornton had tools of his own; that after Thornton had' finished work he came to him and asked for and obtained from him a loan of five dollars, leaving the tools as security; that the tools were then in the chest or box, but, knowing that Thornton had tools worth from ten to fifteen dollars, he did not examine them; that he had previously lent Thornton money on the same tools; that he was sure he received the tools on June 28, because, when Thornton had finished the work for Kipp, Kipp had paid him, taking his receipt which bore that
It appeared from the testimony of other witnesses that Thornton did reside in the neighborhood of defendant’s residence up until the day defendant purchased the tools from him, and that he was engaged in doing odd jobs at carpenter repairing and .similar work. Though Kipp was examined as a witness to establish the previous good character of the defendant, he was not asked to produce the receipt referred to by the defendant, nor was he questioned about it. At the time the defendant •signed the bill of sale, Neyman was busy and did not notice Kow it was signed, until he came to make out his report to the •city authorities of the purchases made during the day. Neyman had known defendant for some time and knew where he resided.
Section 8662, Revised Codes, under which the information was ■drawn, declares: “Every person who for his own gain or to prevent the owner from again possessing his own property buys ■or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years or in a county jail not exceeding six months.” To make out the substantive offense herein defined and denounced, the evidence must establish (1) that the prop
The ownership laid in the information in this ease is jointly in E. G. Johnson, Charles Johnson and C. M. Rude. The evidence discloses that all the tools stolen belonged to E. G. Johnson, except two saws identified as the property of Charles Johnson, and a square belonging to Rude. The judgment, if' allowed to stand, would not support a plea of former conviction under a charge of having received the tools owned exclusively by either of the Johnsons or Rude. While, under the.
The contention is also made that the evidence is insufficient, in that it fails to establish the value of the property as alleged. There is no merit in this contention. The statute does not require the value to be alleged, and it is sufficient to charge the offense as it is therein defined. The penalty does not depend upon the value; hence it need not be alleged. (People v. Rice, 73 Cal. 220, 14 Pac. 851; 2 Bishop’s New Criminal Procedure,, see. 985; 34 Cye. 521.) Not only so, but it is not necessary that the evidence go further than to demonstrate that the property has some value. (34 Cye. 529.) The allegation in the information on this subject may be regarded as surplusage.
Contention is made that the court erred in admitting certain evidence as tending to show that the defendant had at other times received other articles which had been stolen, as reflecting upon the question of his guilty knowledge of their character when he purchased the tools in question. It is conceded that evidence of similar transactions prior to July 3 would have been admissible for the purpose for which this was offered; but that.
The judgment is reversed, and the district court is directed to grant the defendant a new trial.
Reversed and remanded.