Goldman v. Commonwealth

• Decision Date: 04 December 1902
• Court: Virginia Supreme Court
• Parties: GOLDMAN. v. COMMONWEALTH.

42 S.E. 923

100 Va. 865

GOLDMAN.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Dec. 4, 1902.

CRIMINAL LAW—EVIDENCE—DEALING IN PROHIBITED ARTICLES—DEMURRER TO EVIDENCE.

1. In every prosecution it devolves upon the commonwealth to prove—First, that the crime charged has been actually perpetrated, and, secondly, that it was committed by the accused; and, to justify a conviction, the evidence must be so convincing as to exclude every reasonable doubt of the guilt of the prisoner.

¶ 1. Sea Criminal Law, vol. 14, Cent Dig, §§ 723, 724, 1267.

2. Under Code, § 3715, providing that, if any person buy or receive brass or certain other articles with intent to defraud, he shall be confined in the penitentiary, and that possession of such articles, so bought or received from any other person than the manufacturer thereof or his authorized agent, or of a regularly licensed dealer therein, shall be prima facie evidence of such intent, possession of the articles is no evidence that they were bought from any other person than the manufacturer.

3. In a criminal prosecution involving the right to personal property, where the alleged owner thinks he has lost the property, but will not swear that he has, the ownership is not sufficiently proved.

4. Upon a demurrer to evidence, in ascertaining the facts established by any one witness, everything stated by him, as well on his cross-examination as upon his examination in chief, must be considered, and facts imperfectly stated in answer to one question may be supplied by the answer to another; and, where, from one statement, considered by itself, an inference may be deduced, that infer-ence may be strengthened or repelled by the facts disclosed in another.

5. Evidence considered, and held insufficient to support a conviction under Code. § 3715, providing that, if any person buy or receive brass or certain other articles with intent to defraud, he shall be confined in the penitentiary.

Keith, P., dissenting.

Error to hustings court of Roanoke.

R. A. Goldman was convicted, under Code, 8 3715, of having possession of certain brass with intent to defraud, and appeals. Reversed.

Scott & Staples and Hart & Hart, for plaintiff in error.

Wm. A. Anderson, Atty. Gen., for the Commonwealth.

WHITTLE, J. Plaintiff in error, R. A. Goldman, was jointly indicted, along with S. Goldman, in the hustings court of the city of Roanoke, for feloniously buying and receiving certain railroad brass, known as "switch locks, " the property of the Norfolk & Western Railway Company, with intent to defraud. There were a demurrer and a motion to quash the indictment, both of which were overruled, and thereupon the prisoner R. A. Goldman pleaded not guilty. At the trial the jury found the prisoner guilty as charged in the indictment, and fixed his punishment at 60 days in the city jail. The court overruled the prisoner's motion to set aside the verdict and grant him a new trial, and rendered judgment upon the verdict, and the case is here upon a writ of error to that judgment

Prom the view taken of the case by this court, it is only necessary to notice the last assignment of error, which involves the sufficiency of the evidence to warrant a conviction of the prisoner of the felony of which he stands charged.

It will not be inappropriate, in approaching the consideration of that question, to do so in the light of certain well-settled principles of law which apply in every prosecution agaiust a citizen for crime.

It devolves upon the commonwealth to prove—First, the corpus delicti (that is, the fact that the crime charged has been actually perpetrated); and, secondly, that it was committed by the accused. To justify a conviction, the evidence must be so convincing as to exclude every reasonable doubt of the guilt of the prisoner.

In McBride's Case, 95 Va. 826, 30 S. E. 457, this court said: "The prisoner is presumed to be innocent until his guilt is established, and he is not to be prejudiced by the inability of the commonwealth to point out any other criminal agent, nor is he called upon to vindicate his own innocence by naming the guilty man. He rests secure in that presumption of innocence until proof is adduced which establishes his guilt beyond a reasonable doubt; and, whether the proof be direct or circumstantial, it must be such as excludes any rational hypothesis of the innocence of the prisoner."

In the case in judgment the corpus delicti is that the prisoner did "feloniously buy and receive twenty-eight pieces of railroad iron, brass, metal, and composition thereof, and known as 'switch locks, ' of the value of fifty cents each, being the goods and chattels * * * of the Norfolk and Western Railway Company, a corporation, with intent, feloniously to defraud."

The act upon which the prosecution is based is found in section 3715 of the Code, as amended by Acts 1889-90, p. 30, which declares that "If any person buy or receive, " amongst other things, articles such as are described in the indictment, "with intent to defraud, he shall be confined in the penitentiary not less than one, nor more than two, years, or, in the discretion of the jury, in jail not exceeding one year." And the statute further provides that possession of such articles, so bought or received from any other person than the manufacturer thereof or his authorized agent, or of a regularly licensed dealer therein, shall be prima facie evidence of such intent.

It will be observed that the statute does not declare that possession of the contraband articles shall be prima facie evidence, or, indeed, any evidence, that they were bought or received from any other person than the manufacturer thereof, etc., but that, when so bought or received, possession shall be prima facie evidence of an intent to defraud. So that, before any such presumption can arise from the possession of the articles, it is incumbent upon the commonwealth to prove, as an essential element of the offense, that they were bought or received in the manner proscribed by the act. Upon that subject there is no evidence in the record.

Nor does the evidence relied on for that purpose establish with that degree of conclusiveness required in criminal prosecutions that the Norfolk & Western Railway Company has lost any of its switch locks, or that those described in the indictment are the property of that company. On the contrary, but two witnesses testify directly on that point. Neither proves that the company had lost any switch locks, and both decline to positively identify the locks in question as the company's property, although they testify to circumstances tending to support that theory. On the other hand, the witness Beeton, introduced by the commonwealth, testifies that the Norfolk & Western Railroad Company, the immediate predecessor of the Norfolk & Western Railway Company, each having the same initials, "N. & W. R. R., " used locks similar to the ones in question. Non constat but that these locks were the property of the old company, and not of its successor. It is true, another witness testifies that he unlocked two of these switch locks with a key furnished him by a switch tender of the Norfolk & Western Rail-way Company; but the same, doubtless, would have been the case with switch locks of the old company, of similar pattern.

It does not appear that the Norfolk & Western Railway Company had ever missed any of its switch locks. "Where the alleged owner thinks he has lost the property, but will not swear that he has, * * * the ownership is not, by this evidence, sufficiently proved." 2 Bish. Cr. Law, § 752. Such alleged owner could hardly expect a jury to find that his ownership of property was proved beyond a reasonable doubt, when his own doubts were so great that he could neither swear that he had lost, nor that the property in question was his own.

The prosecution originated as follows: Some of the large brass lamps belonging to the Norfolk & Western Railway Company had been stolen from its passenger cars, and the agents, suspecting that they might be found in the barrel of junk, then in the freight depot, consigned in the name of S. Goldman, shipper, to the Ajax Metal Company of Philadelphia, opened the barrel, and discovered the articles described in the indictment.

Whilst the witness Baldwin, a detective in the employment of the Norfolk & Western Railway Company, testifies with characteristic zeal in his effort to fix the guilt upon the accused, a careful scrutiny of his evidence shows more or less conflict between it and that of other witnesses for the commonwealth. These discreppncies are the proper subject of comment, and must impair the value of his testimony. At his instance, Officer Rigney accompanied him to the junk-shop of S. Goldman, and was present at a conversation between him and the prisoner. Yet, so far as appears from his testimony, Rigney heard no admission from the prisoner that he bought and sold junk in S. Goldman's shop, or that "he had bought no switch locks except some brasses which he had gotten from a showman, " as Baldwin testified. His testimony on that point is that prisoner stated that he had not bought any railroad locks, since Baldwin notified him not to do so, except a few which he got from Beeton, all of which were broken. True, Rigney says he was a few feet distant during part of the conversation between Baldwin and prisoner. But he certainly heard the question and answer referred to, and his testimony as to what that answer was is essentially different from that of Baldwin's version of it.

Again, the action of the prisoner in connection with the purchase of locks from Beeton repels the inference to be drawn from the alleged admission to Baldwin that he was in control of the shop and business, and tends to show his true status in relation to the business of S. Goldman.

Beeton distinctly testifies that when he carried certain junk, including the broken switch locks, to the shop, prisoner told him to unload it, but that the sale...