Bowers v. State

• Decision Date: 10 March 1925
• Docket Number: 24,776
• Citation: 146 N.E. 818,196 Ind. 4
• Parties: Bowers v. State of Indiana
• Court: Indiana Supreme Court

146 N.E. 818

196 Ind. 4

Bowers v. State of Indiana

No. 24,776

Supreme Court of Indiana

March 10, 1925

1. INDICTMENT.---Election between counts for larceny and receiving stolen goods unnecessary.---In view of 2212 Burns 1926, 2056 Burns 1914, the state is not required to elect upon which count in an affidavit it will proceed for conviction, when defendant is charged in one count with larceny and in another count with receiving stolen goods both counts referring to the same goods. p. 7.

2. RECEIVING STOLEN GOODS.---Instructions concerning proof required must be considered together.---An instruction in a prosecution for receiving stolen goods which directs that "the State must prove by the evidence" the three essential elements of the crime, is not open to the objection that it fails to state the degree of proof required, when considered together with other instructions which treat those essentials more fully. p. 9.

3. CRIMINAL LAW.---Objector must tender more specific instruction.---Before one can be heard to complain of an instruction which states the law correctly as far as it goes he must tender an instruction which states the law more clearly or completely. p. 9.

4. CRIMINAL LAW.---A verdict of guilty of one of two counts charged is an acquittal of the other.---Where an affidavit charges larceny in one count and receiving stolen goods in another count, a verdict of guilty of the latter is in effect a finding of not guilty of the former. p. 11.

5. RECEIVING STOLEN GOODS.---Presumption of criminal participation from possession does not apply.---The rule that the possession of stolen property, soon after the commission of the theft, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found, does not apply to the offense of receiving stolen property. p. 11.

6. RECEIVING STOLEN GOODS.---Knowledge of theft necessary to sustain conviction.---To sustain a conviction of receiving stolen goods it is essential to prove knowledge by the defendant when he received it, that the property was stolen either by direct evidence or by circumstances from which such knowledge can be inferred. p. 11.

From Elkhart Superior Court; William B. Hile, Judge.

Allen Bowers was convicted of receiving stolen goods, and he appeals.

Reversed.

Church & Chester, for appellant.

U. S. Lesh, Attorney-General, and George A. Matlack, for the State.

OPINION

Willoughby, J.

This is a prosecution by affidavit. The affidavit is in two counts and in the first count charged that on or about August 22, 1921, at the county of Elkhart and State of Indiana, appellant did then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, two 34 x 4 size Kelly-Springfield brand automobile tires of the value of sixty ($ 60) dollars and in the second count charges that on or about August 22, 1921, at the county of Elkhart and State of Indiana, appellant did then and there unlawfully and feloniously buy, conceal, and aid in the concealment of two 34 x 4 size Kelly-Springfield brand automobile tires, theretofore unlawfully and feloniously stolen by John Doe and Richard Doe, whose true names were unknown. Trial by jury on a plea of not guilty. The jury returned a verdict finding the appellant guilty on the second count of the affidavit, and found the value of the goods to be $ 52, and the age of the appellant to be thirty-three years.

After a motion for a new trial was overruled and exceptions taken, judgment was rendered on the verdict, fixing the fine in the sum of $ 100, and that appellant be imprisoned in the Indiana State Prison not less than one year nor more than fourteen years. That he be disfranchised and rendered incapable of holding any office of trust or profit for a period of two years and that he pay and satisfy the costs.

Appellant appeals and assigns as error, that the court erred in overruling his motion for a new trial. Appellant claims that the court erred in overruling his motion made at the conclusion of all the evidence to require the state to elect upon which count in the affidavit it desired to proceed for conviction.

Section 2451 Burns 1926, § 2269 Burns 1914, provides that--"whoever feloniously steals, takes and carries, leads or drives away the personal goods of another of the value of twenty-five dollars or upward is guilty of grand larceny, and, on conviction, shall be imprisoned in the state prison not less than one year nor more than fourteen years, fined not exceeding double the value of the goods stolen, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period."

Section 2465 Burns 1926, § 2273 Burns 1914, 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 pretenses, 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."

Section 2212 Burns 1926, § 2056 Burns 1914, provides that--"An indictment or affidavit for larceny may contain a count for * * * receiving or concealing the same property, knowing it to have been stolen * * * and the accused may be convicted of either offense, and the court or jury trying the cause may find all or any of the persons accused guilty of the offenses charged."

Another provision of statute, § 2277 Burns 1926, § 2121 Burns 1914, provides that--"In any prosecution for the offense of buying, receiving, concealing or aiding in the concealing of any stolen property, it shall not be necessary on the trial thereof, to prove that the person who stole such property has been convicted."

Another provision of statute, § 2219 Burns 1926, § 2061 Burns 1914, provides that--"When any offense is committed upon or in relation to any property * * * which, when the offense was committed, was in possession of a bailee * * * the indictment or affidavit for such offense shall be deemed sufficient, if it allege the ownership of such property to be in such * * * bailee."

It appears that the property named in each count of the affidavit is the same property, viz.: two 34 x 4 size Kelly-Springfield brand automobile tires, of the value of sixty dollars and the property of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company.

The court did not err in overruling appellant's motion to require the state to elect upon which count in the affidavit it desired to proceed for conviction of the defendant. § 2212 Burns 1926, § 2056 Burns 1914; Kennegar v. State (1889), 120 Ind. 176, 21 N.E. 917; Goodman v. State (1895), 141 Ind. 35, 39 N.E. 939; Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357; Ewbank, Criminal Law, §§ 265-268.

The appellant claims that the court erred in giving instruction No. 12, which is as follows: "To warrant the conviction of the defendant under the second count of the affidavit, the State must prove by the evidence; first, that the property described in the affidavit or some part of it was stolen. Second, that the defendant received the property or some part of it from persons who stole it or from some one acting for or on behalf of such thief. Third, that the defendant when he received such property knew that it was stolen property."

The objection pointed out to this instruction by the appellant is that it fails to state the degree of proof required before a conviction may be had.

Instruction No. 12, is followed by instructions Nos. 13 and 14 which are as follows:

Instruction No. 13.--"Evidence has been introduced in this cause that the property described in the second count of...