Appellants were tried by a jury upon an indictment which charged them with receiving stolen goods in violation of Acts 1905, ch. 169, § 381, § 2465 Burns 1926. They were each found guilty, fined $50, and sentenced to imprisonment in the Indiana State Prison for not less than one nor more than 14 years.
The alleged errors which are assigned and not waived are the overruling of their separate and several motions to quash the indictment and the overruling of their motion for a new trial. All of the 40 reasons stated in the latter motion are waived, except those alleging that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and one alleging that the court erred in refusing to sustain appellants' motion to require certain merchandise and property to be withdrawn from the sight and presence of the jury.
Appellants contend, under their first assignment, that the indictment is insufficient because it does not specifically charge that the property received by appellants was received by them from the thief knowingly. Under their second assignment, they contend that, in order to *Page 576 sustain a verdict against them, there must be evidence that they received the goods in question from the thief himself or under circumstances that directly connect them with the thief and that there is an absence of such evidence.
Section 2465 Burns 1926, under which this prosecution is brought, provides that:
"Whoever buys, receives, conceals, or aids in the concealment of, anything of value, which has been stolen, taken by robbers, embezzled, or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled, or obtained by false pretense, shall, if the goods be of the value of twenty-five dollars or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than twenty-five dollars shall suffer the punishment prescribed for petit larceny."
The indictment in part reads as follows:
"The grand jury . . . upon their oaths do present and charge that Lionel A. Wertheimer and Irvin Goldberg . . . did then and there unlawfully and feloniously buy, receive, conceal and aid in the concealment of fifteen coats, of the value of seventy-one dollars and seventy-five cents of the personal property of John Chenoweth and Wilbur Wiggins . . . which said goods and property, prior to the time it was so bought, received, and concealed by said Lionel A. Wertheimer and Irvin Goldberg, had been unlawfully and feloniously stolen, taken and carried away . . . by some person or persons to the grand jury unknown; that said Lionel A. Wertheimer and Irvin Goldberg at the time they so bought, received, concealed and aided in concealing said goods and property well knowing that the same had been so as aforesaid unlawfully and feloniously stolen, contrary," etc.
As a general rule, an indictment is sufficient if the charge made therein is substantially in the language of *Page 577
the statute defining the offense. State v. Miller
1, 2. (1884),
The allegation that the defendants "unlawfully and feloniously" received goods that had been previously unlawfully and 3. feloniously stolen, knowing that the same had been stolen, is equivalent to charging that defendants knowingly received the goods which at the time of receiving were still under the larcenous taking, Gandolpho v. State, supra;Kaufman v. State (1874),
The transaction of receiving stolen goods is identified in part by the description of the stolen things and their ownership. The owner's name is important in identification and must be 4, 5. stated if known. In this state, receiving or concealing stolen goods, knowing them to have been stolen, is an independent, substantive offense and not merely an accessorial one. The particular thing denounced by the statute is the receiving *Page 578
of stolen goods knowingly. The name of the thief, or other person from whom the accused received the goods, is not necessary as identifying matter, and, for that reason, need not be alleged in the indictment. Semon v. State, supra; Beuchert v. State
(1905),
The evidence of the State, briefly, is: That the general store of Chenoweth and Wiggins, at Losantville, was burglarized during the night of December 3, 1924, and certain clothing was 6. taken including coats, vests, overalls, shirts, underwear, blanket-lined coats, and one dozen sheep-lined coats; that, on December 6, 1924, appellants opened a "fire-sale" in the Hub department store which they operated in Muncie (following a fire there on November 26); that Wiggins, accompanied by police officers, went to appellants' store early on the day the sale was to begin and discovered some of the clothing which had been stolen from the Losantville store, and later, with the aid of a search warrant, discovered and identified a considerable amount of such clothing; that appellants, when questioned about the stolen property so discovered in their possession, said they had invoices for all of the merchandise, but were unable to produce the invoices; that they denied all knowledge as to how some of the stolen property which was identified came to be in their possession; that some of the coats still had tags with the Losantville store cost-mark on them and were included in the invoices of that store; that the lower end of the tags on some of the garments were removed and that one of the appellants was seen by a witness to remove tags from other coats during the fire-sale and place them in his pocket; that the wholesale cost of the sheep-lined coats to the Losantville store was $7.50 each and that appellants *Page 579 were selling them at prices ranging from $1.95 to $5.95. It was also proved that clothing was found in appellants' store on December 6, which had been stolen from a store at Fowlerton on November 28, and from a store at Albany (Ind.) on July 20. On cross-examination, the owner of the burglarized store at Losantville and a police officer testified that the identity of the burglar or thief who had taken the goods from that store was unknown, although diligent search had been made to discover it. From the evidence, the inference of guilt can reasonably be drawn. The evidence is sufficient to sustain the verdict, and the verdict is not contrary to law.
Guilty knowledge is an essential element of the crime of receiving stolen goods, and it is necessary that allegation and proof be made that the accused receiver of the property 7, 8. knew that the property was stolen property at the time he received or concealed it. Goodman v. State, supra;Semon v. State, supra; 3 Bishop's New Crim. Proc. (2d ed.) 1856. (The word "conceal" as used in the statute is not only to be given its literal meaning of hiding or secreting, but it includes any acts or conduct which assist the thief in converting the property to his own use, People v. Reynolds [1852],
Where, as in this state, the crime of receiving stolen goods is an independent, substantive offense and not merely an accessorial one, it is not necessary to prove that the accused knew 9, 10. from whom the property was stolen, or when or where it was stolen, or who stole it, or the circumstances under which it was stolen. 2 Brill, Cyc. Crim. Law § 929, 1188-9;Holford v. State (1827), 2 Blackf. (Ind.) 103; Kaufman v.State, supra. Proof that the accused knew the property was stolen property cannot often be, and need not be, made directly, by absolute and positive evidence, but *Page 580
such knowledge may be proved or inferred from the circumstances. 2 Brill, Cyc. Crim. Law, 1469, 1472-4; 17 R.C.L. 85; State v.Rose (1927), 5 N.J. Misc. Rep. 213, 136 A. 295; State v.Stanley (1927), 123 Kan. 113, 254 P. 314; Burton v.State (1925), 102 Texas Crim. 110,
The question of the existence of such knowledge is one of fact for the jury, Robinson v. State (1882),
The cases are not in harmony upon the question of the effect of the unexplained possession of recently *Page 581
stolen goods,1 by one charged with unlawfully 14, 15. receiving them, but all of the courts are agreed that such possession is a strong circumstance to be considered, with all the evidence in the case, on the question of guilty knowledge, 2 Brill, Cyc. Cr. Law, 1472-4, and convictions for receiving stolen goods have been held to be warranted where such recent possession was coupled (a) with contradictory statements by accused as to their possession of the property (17 R.C.L. 86; Note 15 Ann. Cas. 902-3; Gunther v. People [1891],
The language used by this court in Foster v. State (1885),
Under their second assignment of error, appellants further contend that, since it is charged in the indictment that the goods were stolen "by some person to the grand jurors 17, 18. unknown," that "it must be made to appear at the trial that the name of the thief was unknown to the grand jury and that reasonable diligence was used (by the grand jury) to ascertain his name." In a prosecution for receiving stolen goods, neither the thief nor the next former possessor is upon trial, and his identity is, therefore, an immaterial matter (Semon v. State, supra), and, as already noted, the name of the thief need not be alleged in the indictment. Likewise, if the thief is unknown, that fact need not be alleged, but if his name, or the fact that his name is unknown, is alleged, such allegation must be proved for the identification of the offense as charged.Semon v. State, supra. Proof was made by the State in this case that the identity of the burglar was unknown, although diligent search had been made to discover it.
Appellants' contention that it must be made to appear that the name of the thief was unknown to the grand jury, etc., is based upon another statement made in Foster v. State, supra,
19. the statement being the same as that portion of the sentence quoted in the preceding paragraph which is inclosed in quotation marks, excepting the phrase enclosed in parentheses. But this statement in the Foster case was expressly disapproved in Carter v. State (1909),
"The true rule, both upon reason and the authorities, is that, if the name of a person, or means used to accomplish an unlawful end, are alleged by the grand jury to be unknown, it is not incumbent upon the State to show in the first instance affirmatively that such fact was unknown to the grand jury; but it is incumbent upon the State to prove to the traverse jury that the fact alleged to be unknown is unknown, or to prove such a state of facts or circumstances as render the alleged unknown fact uncertain, in which event such fact is presumed to have been unknown to the grand jury."
In Carter v. State, supra, it was further said:
"But if there is evidence tending to show that the grand jury did know, or could by the use of reasonable diligence have known, the fact alleged to be unknown, or was negligent or perverse in not alleging what was at its command to know, then the burden is upon the State to show that the grand jury did not know the alleged unknown fact,"
but, in the case at bar, the record contains nothing which placed on the State a burden to show that the grand jury did not know the alleged unknown fact.
Appellants' motion, made at the beginning of the trial, to require certain merchandise to be withdrawn from the sight and presence of the jury because such merchandise was not 20. described, identified or referred to and set out in the indictment, was properly overruled. Under the rule statedinfra, the State, in introducing in evidence stolen property found in defendant's possession, is not limited to that property described and charged in the indictment.
A considerable amount of property stolen from the stores at Fowlerton and Albany, which was found in appellants' possession at the time of their arrest, was introduced in evidence, and it does not appear from the record that any property was in the court-room and *Page 586 within the view of the jury which was not introduced in evidence. We can conceive of a situation where a display in a court-room of a large amount of merchandise not admissible in evidence or not connected with the case on trial might, unexplained, be prejudicial to a defendant's rights, but no such situation is shown to exist here.
The stolen property from the Fowlerton and Albany stores was properly introduced in evidence. In trials for receiving stolen goods, evidence tending to prove that other stolen 21, 22. goods were found in the possession of the defendant at the time of or prior to the receiving complained of, is competent to be considered with all the other evidence in the case on the question of guilty knowledge — such evidence reasonably tending to support an inference that the accused, when he received the goods in controversy, had knowledge of their larcenous character. Beuchert v. State, supra; Carpenter v.State (1921),
Judgment affirmed.
Myers and Travis, JJ., concur in result.
Willoughby, J., absent.
Where, as in the case at bar, there is no evidence to show that the theft was committed by some person other than the defendant charged with receiving the goods, such possession of goods recently stolen raises a presumption of theft, rather than of receiving stolen goods, and is not prima facie evidence that the possessor is guilty of receiving stolen goods. Bowers v.State (1925),