Jenkins v. State

• Decision Date: 06 November 1884
• Citation: 21 N.W. 232,62 Wis. 49
• Parties: JENKINS v. STATE.
• Court: Wisconsin Supreme Court

62 Wis. 49

21 N.W. 232

JENKINS

v.STATE.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Error to circuit court, Grant county.

The plaintiff in error was tried upon an information charging that on June 29, 1882, in the county of Grant, he received certain moneys, bills, and notes of the value of $2,800, the property of the United States Express Company, which had theretofore been feloniously and burglariously stolen and taken away by some person unknown; he, the said plaintiff in error, then and there well knowing that the same had been stolen. It was proved on the trial that on said June 29th the First National Bank of Milwaukee delivered to the agent of the express company a package containing $2,500 in currency, in $5, $10, $20, and possibly one or two $50 or $100 bills, consigned to one A. J. Pipkin, of Boscobel; that the package was transmittel to Boscobel on the same day, and delivered by the express agent on the train to the temporary night operator at that place, who delivered it to the day operator then temporarily in charge of the depot. The latter placed the package in the safe of the express company in the depot office with certain other parcels of money, amounting to a few hundred dollars, and locked the safe. The persons employed about the depot who had access to the safe were the station agent, who was then absent in Iowa, the day operator, who had temporary charge of the depot, and a night operator, temporarily employed to take the place of the regular night operator, who was, or had been, sick, and had not yet returned to duty, although in Boscobel. The safe was furnished with a combination lock. The combinations were three; the numbers were from one to one hundred. The station agent, the day operator and the regular night operator, and they only, had the combination.

After the train which brought the money had passed, which was at 9:35 P. M., and after the money had been put in the safe, and the safe locked, the temporary night operator locked the depot and left it. The day operator had left before. The former returned to the depot in about 20 or 30 minutes, and found the depot open and the safe unlocked and open. The money in the safe, including the $2,500 package, was missing, except a package containing $150. The safe was not injured. At that time the plaintiff in error resided with his family in Boscobel, and had resided there for several years previously, and was there during the evening the money was taken. The testimony tends to show that up to that time he was poor, at times in quite straitened pecuniary circumstances, and that soon after the money was taken his circumstances greatly improved, and he had and expended considerable sums of money. The testimony on this branch of the case is more specifically stated in the opinion. Afterwards a criminal charge was brought against the plaintiff in error, which had no connection with the taking of this money from the express office, and he was imprisoned thereon in the county jail of Grant county. His father and brother, after an interview with his wife, went to a stable in which the plaintiff in error kept some horses during the summer, dug into the earth at the side of a manger, and found there a package of money, currency, rolled up in a woolen cloth, containing $1,475. The money was damp, and smelled of the stable. They deposited $500 of this money with the clerk of the court, as security for the appearance of the plaintiff in error to answer the charge against him, and he was liberated. His father gave him the balance of the money taken from the stable. He said that it was his money, and that he came honestly by it, but did not say how he obtained it.

The court instructed the jury that the failure of the plaintiff in error to testify as a witness on his trial created no presumption against him; that he was to be presumed innocent until his guilt was established by competent proofs, and no fact necessary to the establishment of his guilt could be taken as true unless so established; that the jury must regard him as of good standing and character in every respect except as otherwise proved; that the possession of any amount of money by him is not alone sufficient to justify a conviction; that the sudden bettering of his circumstances, and his possession of more money than it was generally supposed he had, if proven and wholly unexplained, are only circumstances of suspicion, and will not justify the jury in convicting him; and that to establish his guilt the jury must be satisfied from the evidence beyond a reasonable doubt-- First, that the moneys mentioned in the information were stolen; second, that he received these same identical moneys, or some part thereof; and, third, that when he received such moneys he knew the same to have been stolen. All the above instructions were given at the request of the plaintiff in error, and they were unqualified except by an instruction that the jury might consider a sudden bettering of the circumstances of the accused (if they so found the fact) as an element in the case.

The following instructions proposed on behalf of the plaintiff in error were refused: “(1) A defendant has a right to testify in his own behalf in a criminal case, but he is not called upon to make a defense until some charge against him has been established by competent proof on the part of the state. (2) The possession of money not identified as stolen money raises no presumption whatever against the defendant that he is guilty of receiving stolen money. (3) The possession of stolen money three months after it was stolen raises no presumption that the possessor is guilty of receiving stolen money. (4) There is no testimony in this case that any part of the moneys claimed by the prosecution to have been stolen from the depot in Boscobel on June 28, 1882, ever came into the hands of the defendant. (5) The defendant had a right to keep his money buried in the ground or anywhere else he saw fit, and the mere fact that he kept money in that way will not by any means justify you in determining that the money so kept was stolen money. (6) There is no testimony identifying a single dollar of the money shown to have been in the possession of the defendant as a part of the money taken from the safe in the Boscobel depot. (7) If the defendant himself stole the moneys mentioned in the information from the depot safe, you must acquit him. He is not here charged with such stealing. (8) If any of the employes of the United States Express Company about the depot, knowing the combination of the safe wherein the moneys mentioned in the information were kept, and, having in charge its contents, took such moneys therefrom and converted them to their own use, that would not be stealing, but embezzlement, and in such case the defendant's afterwards receiving such moneys or any part thereof from such employes or otherwise would not be receiving stolen money, and the defendant must be acquitted. (9) If the money mentioned in the information was taken from the safe by some one of the employes of the express company having it in charge, or if it was taken by such employes and never put in the safe, you will find the defendant not guilty. (10) If from the testimony you think there is as much reason to believe that the money mentioned in the information was taken by some one of the employes of the express company having it in charge, as there is to believe that it was taken by somebody else, you will find the defendant not guilty. (11) If from the testimony you think there is as much reason to believe that the defendant himself stole the money mentioned in the information, as there is to believe that he received it after it was stolen by somebody else, your verdict will be, not guilty. (12) Was any money stolen from the depot? If it was taken by an employe of the express company having it in charge, it was embezzled, and not stolen, and the defendant must be acquitted. (13) If the money was stolen by defendant Jenkins himself, he is not guilty of receiving stolen money, as charged, and must be acquitted. (14) The recent possession of stolen property raises the presumption of larceny, and not of receiving stolen property.” The jury returned a verdict of guilty.

Bushnell & Clark, for plaintiff in error.

Brooks & Dutcher, for defendant in error.

LYON, J.

This case was here at the last term of this court on the report of the circuit judge, and it was then held that the court properly directed the information to be amended to aver that the moneys therein mentioned were stolen by some unknown person, and that the verdict was sufficient. 19 N. W. REP. 406. It was stated in the opinion that the original information contained but one count, which was for receiving the stolen moneys. Of course, the same is true of the amended information. Yet the brief of counsel for the prosecution starts out with the proposition that the plaintiff in error was informed against for stealing the moneys as well as for receiving them. This inaccuracy is not important, but it is well to avoid any misapprehension of the real nature and scope of the information. After the decision on the report, the circuit court proceeded to render judgment on the verdict, and the accused was sentenced to two years' imprisonment in the state prison. He is now suffering such punishment. The case is now here on writ of error. The errors alleged for a reversal of the judgment are all predicated upon the refusal of the court to give the jury the instructions contained in the above statement of facts, asked in behalf of the accused, and upon the instructions given. Although the proposed instructions are 14 in number, it is believed they really raise but three questions. These are: (1) Is the testimony sufficient to support a finding that the money found buried in the stable in October was the same money which was taken from the safe of the express company in June? (2) If the...