Semon v. State

• Decision Date: 30 January 1902
• Docket Number: 19,727
• Citation: 62 N.E. 625,158 Ind. 35
• Parties: Semon v. State
• Court: Indiana Supreme Court

62 N.E. 625

158 Ind. 35

Semon v. State

No. 19,727

Supreme Court of Indiana

January 30, 1902

From Madison Circuit Court; J. F. McClure, Judge.

Justin Semon was convicted of receiving stolen goods, and he appeals.

Affirmed.

T Bagot, A. Ellison, C. K. Bagot, W. A. Kittinger and W. S Diven, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley, for State.

OPINION

Hadley, J.

Appellant was convicted of receiving stolen goods. He asks for a reversal of the judgment for alleged errors of the court in overruling his joint and separate motion to quash the affidavit and information and his motion for a new trial. The charging part of the affidavit is in these words: "Emile C. Fessler, who, being duly sworn, upon his oath says that Justin Semon on the day of October, A. D. 1899, at and in the county of Madison, and State of Indiana, did then and there unlawfully and feloniously buy, receive, conceal, and aid in the concealment of eight overcoats, forty-seven suit coats, twenty-six pairs of pants, and twenty-one vests, of the value of $ 250, of the personal property of John Owen and Philip Owen, partners doing business under the firm name of Owen Brothers; which said goods and property, prior to the time it was so bought, received, and concealed by said Justin Semon, had been unlawfully and feloniously stolen, taken, and carried away at said county, by some person or persons to affiant unknown; that said Justin Semon at the time he 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. The information, except the formal parts, is the same as the charging part of the affidavit, and is signed by the prosecuting attorney.

Appellant's points against the affidavit and information are (1) that neither, nor both combined, show that the goods received by appellant had, at the time they were received, the quality of stolen goods; and (2) that neither the affidavit nor information charge that the goods were received from the thief, or any one acting for or with him.

The prosecution is under § 2012 Burns 1901, § 1935 R. S. 1881 and Horner 1901, which reads, "Whoever buys, receives, conceals or aids in the concealment of any thing of value, which has been stolen, * * * knowing the same to have been stolen, * * * shall, if the goods are of the value of $ 25 and upwards, upon conviction thereof, suffer", etc. There are three elements of the crime here defined: (1) the receipt, (2) of goods which have been stolen, and (3) knowing them to have been stolen. To make a good charge, it must therefore be averred, in substance, that the goods had been stolen, and had been received by the defendant, knowing that they had been stolen. The general rule in this State is that an indictment or information is sufficient if the charge is made substantially in the language of the statute defining the offense. Benham v. State, 116 Ind. 112, 18 N.E. 454; Stewart v. State, 111 Ind. 554, 13 N.E. 59; State v. Miller, 98 Ind. 70; Riley v. State, 95 Ind. 446; Betts v. State, 93 Ind. 375.

Here the charge is not only in language equivalent to the words of the statute, but it is in substantial compliance with the first insistence of appellant. The averment is that the defendant "feloniously" received goods that had been previously stolen, knowing, etc. While to aver that an act was feloniously done will not make it so in fact, yet in making a criminal charge it is essential, and has the effect as a matter of pleading, to characterize the act complained of as having been done in a manner prohibited by the statute. If the goods when received were not the subject of larceny, the receiving would not have been felonious. Hence the averment of the affidavit and information is equivalent to charging that the defendant received goods which at the time of receiving were stolen goods, that is, goods still under the larcenous taking, and the defendant knew it. This is sufficient. Kaufman v. State, 49 Ind. 248; Owen v. State, 52 Ind. 379.

In this State receiving stolen goods, knowing them to have been stolen, is an independent, substantive offense. The particular thing denounced by the statute is the receiving of stolen goods knowingly. In a prosecution for receiving, neither the thief nor the next former possessor is upon trial, and his identity is therefore an immaterial matter. The general rule upon this point is clearly stated in 17 Ency. of Pl. & Pr. page 893, thus: "Where receiving stolen goods is prosecuted as a substantive offense the indictment need not charge the name of the thief or of the person from whom the property was received, nor need it be alleged that the name is unknown to the grand jury". Among the authorities supporting the rule as here announced, see, Owen v. State, 52 Ind. 379, 382; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Anderson v. State, 38 Fla. 3, 20 So. 765; State v. Guild, 149 Mo. 370, 50 S.W. 909, 73 Am. St. 395; Commonwealth v. Hogan, 121 Mass. 373; Allison v. Commonwealth, 83 Ky. 254; State v. Feuerhaken, 96 Iowa 299, 65 N.W. 299; Shriedley v. State, 23 Ohio St. 130, 139; People v. Ribolsi, 89 Cal. 492, 26 P. 1082; State v. Murphy, 6 Ala. 845; Chitty Cr. Law p. 991; Archb. Cr. Pro. & Pl. (Waterman's notes) top p. 656; 2 Bishop New Cr. Pro. §§ 981, 982. The affidavit and information are sufficient.

II. While not necessary to allege the name of...