State Of West Va. v. Manstoff, (No. 8520)

• Decision Date: 02 February 1937
• Docket Number: (No. 8520)
• Citation: 118 W.Va. 214
• Parties: State of West Virginia v. Samuel Manstoff
• Court: West Virginia Supreme Court

118 W.Va. 214

State of West Virginia

v.Samuel Manstoff

(No. 8520)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1937.

Decided February 2, 1937.

1.Criminal Law-

On an indictment containing two counts, each count charging an offense separate and distinct from the other, a finding of guilty on one count operates as an acquittal from the charge contained in the other count. Such findings by a jury, where the offenses charged in the two counts are separate and distinct, are not inconsistent to the point where the verdict will be affected.

2.Criminal Law

An instruction which tells the jury that if any member thereof, after weighing and considering the evidence in the case, should entertain a reasonable doubt as to the guilt of the defendant, they cannot return a verdict of guilty, sufficiently covers the subject of unanimity of a jury's verdict, and the duties of the individual juror, and refusal to give a further instruction on such subject is not error.

Error to Circuit Court, Jefferson County.

Samuel Manstoff was convicted of aiding in concealing goods, knowing them to have been stolen, and he brings error.

Affirmed.

Lee Bushong, Jr., and James M. Mason, 3d, for plaintiff in error.

Clarence W. Meadows, Attorney General, Kenneth E. Hines, Assistant Attorney General, and John T. Porterfield, for the State.

Fox, Judge:

At the April term, 1936, of the Circuit Court of Jefferson county, an indictryent was returned against Samuel Manstoff, charging him with the buying and receiving of goods and chattels knowing them to have been stolen; and also with aiding in concealing goods and chattels, knowing them to have been stolen. Both charges relate to six pieces of meat, the proven value of which was $28.15. This prosecution is based upon Section 18, Article 3, Chapter 61, of the Code, which reads:

"If any person buy or receive from another person, or aid in concealing, or transfer to a person other than the owner thereof, any stolen goods or other thing of value, which he knows or has reason to believe has been stolen, he shall be deemed guilty of the larceny thereof, and may be prosecuted, although the principal offender be not convicted."

The indictment contains two counts: the first, covering the charge of buying and receiving meat, described in the indictment, knowing the same to have been stolen; and the second, charging him with aiding in concealing said meat, knowing it to have been stolen. The case was tried by a jury, and a verdict of guilty was returned on the second count of the indictment, on which verdict, after the overruling of a motion to set it aside, the court sentenced the defendent to confinement in the penitentiary for the term of one year, to which action of the court the defendant prosecutes this writ of error.

The particular errors assigned by the defendant are (1) the failure of the court to strike out the evidence of the state and direct a verdict of not guilty; (2) the refusal of the court to sustain defendant's motion to direct a verdict of not guilty after the state and defendant rested their case; (3) the refusal to give to the jury instruction No. 12, offered by the defendant; and (4) the refusal of the court to set aside the verdict of the jury and grant a new trial. In addition to the specific errors relied upon, defendant raises in his brief a question as to the effect of the jury's finding the defendant guilty on the second count of the indictment, which he says, in effect, found said defendant not guilty on the first count; and he contends that the effect of finding the defendant not guilty on the first count was repugnant to and inconsistent with its finding of guilty on the second count, and that by reason thereof the verdict of guilty must fall.

It may be admitted that the verdict of the jury finding the defendant guilty upon the second count operated as an acquittal from the charge contained in the first count of the indictment. State v. Swain, 81 W. Va. 278, 94 S. E. 142; Hawley v. Commonwealth, 75 Va. 847, 850; Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789. It is not perceived, however, that this can in any wise affect the validity of the verdict on the second count. The two offenses charged in the indictment were separate and distinct. As an illustration, the defendant might well have purchased and received the meat in question without any knowledge of its having been stolen; and yet, if he later learned that it had been stolen, the concealment of the same, or aid in its concealment, would have subjected him to the penalties prescribed by statute for concealing stolen property. 53 C. J. 507. We hold, on this point, that the verdict of the jury was properly sustained by the court.

This brings us to the consideration of the facts presented to the jury and upon which its verdict was based. On these facts, there is little controversy. It is shown by the evidence that there was stolen from one Samuel Dean, a tenant farmer, on February 29, 1936, fourteen pieces of meat. Later, on April 13, 1936, for some reason undisclosed by the record, a warrant was obtained authorizing the search of the premises of the defendant, located in Charles Town. It appears that the defendant was engaged in a grocery and meat business, carried on in a building owned by him, the front of which was used in his business and with which was connected a rear room, known as a coal room, which was used for storage purposes; that he was the owner of an adjoining building of four stories, a part of which he had leased to a tenant; that when the officers in whose hands the search warrant had been placed for execution appeared at the defendant's place of business, and exhibited the warrant, they first made search of the building in which defendant's business was being carried on, including the coal room, and there found two pieces of meat, afterwards identified as having been stolen from Samuel Dean; that upon discovering this meat, inquiry was made of the defendant as to whether he had any other meat to which he replied that he had not; that the officers then stated to the defendant that their warrant authorized them to search the adjoining building, and inquired if he had any meat in that building, to which he replied that he had not; that after some delay in finding the keys, some of the officers and the defendant went into the adjoining building, reached the third floor without finding any meat, and the defendant, being asked whether there was a higher floor, replied there was not; that the officers, making still further search, discovered that there was a fourth floor, which they searched, and found thirty or forty pieces of meat, including three hams and one shoulder which were afterwards identified as having been stolen from Samuel Dean. In fairness to the defendant, it should be stated that his explanation of his conduct, at the time the search was made, is that when he was asked if he had any other meat in his possession, he understood the officers to refer to the building in which they then were, and in which the defendant's business was carried on. The defendant gives no satisfactory explanation of his possession of the stolen property. He states that he acquired the meat found in the fourth story of his building at various times and from various people, in small lots of two or three pieces at one time, but did not account for the manner in which he acquired the stolen property. On this evidence and these circumstances, the jury returned a verdict of guilty of aiding in concealing stolen property.

The possession of stolen property, alone, is not sufficient to convict the accused of knowledge of its theft; but such possession may, with all other evidence and circumstances in the case, be considered by the jury. State v. Lewis, 117 W. Va. 670, 187 S. E. 315; State V. Goldstrohm, 84 W. Va. 129, 99 S. E. 248; 53 C. J. 536. In this case, the following circumstances weigh strongly against the defendant: The possession of stolen property without satisfactory explanation; the failure to account as to how and from whom the stolen property was acquired; that the meat in possession of the defendant had been acquired in small lots of two or three pieces at one time; that the meat was stolen from Dean approximately six weeks before the search of defendant's premises, and that in that short time, defendant had acquired at least six pieces thereof, presumably from one person, and without being able to disclose from whom he acquired the property or giving any explanation of his failure to recall such acquisition; the storing of the stolen meat, and other meat, on the fourth floor of an adjoining building remote, as regards access, from his place of business and in a place unusual for that character of storage; the conduct of the defendant when his premises were searched; his statement that at that time he had no meat except that found in the coal room, and that he had no meat in the other building; that when the third floor of his adjoining building was reached, he stated that there was no floor above; the fact that there was such floor and that the stolen property was found there; and generally, the failure of the defendant to make any reasonable or satisfactory explanation of his acquisition and possession of the stolen property. Against these circumstances, and the inferences which may reasonably be drawn therefrom, are the statements of the defendant in which he denied any guilt; that he kept no record of his purchases; and that when asked whether he had any other meat, at the beginning of the search when the two pieces were located, he understood the officers...