State v. Albert
| Decision Date | 20 September 1938 |
| Citation | 82 P.2d 689,159 Or. 667 |
| Parties | STATE <I>v.</I> ALBERT |
| Court | Oregon Supreme Court |
Possession of recently stolen goods by one charged with
receiving them as evidence on question of guilty knowledge, note
68 A.L.R. 187. See, also, 17 R.C.L. 89 (6 Perm. Supp., 4229)
16 C.J. Criminal Law, § 1195
Appeal from Circuit Court, Multnomah County.
Morris Albert was convicted of receiving stolen property, and he appeals.
AFFIRMED.
Irvin Goodman, of Portland, for appellant.
Clarence A. Potts, Deputy District Attorney, of Portland (James Bain, District Attorney, of Portland, on the brief), for the State.
From a judgment of conviction upon an indictment charging defendant with having committed the crime of receiving stolen property, defendant appeals.
Two questions are sought to be presented by this appeal: (1) Whether in cases of this character, it is error to receive in evidence testimony to the effect that about three weeks subsequent to the date of the alleged commission of the crime charged, defendant received stolen property knowing the same to have been stolen by the same persons from whom it is claimed by the state defendant received the property mentioned in the indictment; and (2) whether error was committed in giving the state's fourth requested instruction, which is as follows:
"You are instructed that although the indictment charges that the defendant bought, received, had and concealed certain property, it is not necessary for the State of Oregon to prove all of these means, and it is sufficient to warrant a finding of guilty as charged in the indictment if the state proves beyond a reasonable doubt that the defendant either bought, or received, or had, or concealed the property as charged in the indictment."
1. Upon the first question we think that the better reasoning and the weight of authority are adverse to defendant's position. Among authorities supporting the state's contention are: State v. Goldstein, 111 Or. 221 (224 P. 1087); State v. Park, 322 Mo. 69 ( ); State v. Baker, 84 W. Va. 151 (99 S.E. 252); Jeffries v. United States, 7 Ind. T. 47 (103 S.W. 761); People v. Weisenberger, 73 App. Div. 428 (77 N.Y.S. 71); Mehlman v. State, 92 Tex. Cr. Rep. 557 (224 S.W. 602); Heglin v. State, 56 Okla. Cr. App. 364 ( ); State v. Ray, 209 N.C. 772 (184 S.E. 836); State v. Keays, 97 Mont. 404 ( ); State v. Cohen, 254 Mo. 437 (162 S.W. 216, Ann. Cas. 1915C, 86); Goldsberry v. State, 66 Neb. 312 (92 N.W. 906); Wigmore on Evidence (2d Ed.) Vol. 1, § 325.
The authorities to which our attention has been called supporting defendant's position are: Bismark v. The State, 45 Tex. Cr. Rep. 54 (73 S.W. 965); Dampier v. State, 191 Ind. 334 (132 N.E. 590); Poon v. State, 120 Tex. Cr. Rep. 522 ( ); Rex v. Head, (1903) Vol. 67 J.P. (Eng.) 459; People v. Willard, 92 Cal. 482 (28 P. 585); State v. Moxley, 41 Mont. 402 (110 P. 83); The People v. Baskin, 254 Ill. 509 (98 N.E. 957); People v. Lindley, 282 Ill. 377 (118 N.E. 719).
With reference to the foregoing authorities, we are indebted not only to the diligence of counsel but also to an exhaustive annotation to the case of People v. Marino appearing in Vol. 105, American Law Reports annotated, p. 1288, et seq.
Defendant cites State v. Baker, 23 Or. 441 (32 P. 161); State v. O'Donnell, 36 Or. 222 (61 P. 892) and State v. Stacey, 153 Or. 449 ( ). The first two of these three cases deal with the exception to the general rule that evidence of other crimes than that charged in the indictment is inadmissible. The Baker case illustrates the exception, while in the O'Donnell case the general rule was applied.
In his opinion in State v. Stacey, supra, Mr. Justice BAILEY clearly stated the distinction between that case and State v. Goldstein, supra, and other cases, where evidence of prior and subsequent transactions involving other crimes was received.
On the hearing in this court, special stress was placed by defendant upon the Texas case of Bismark v. State, supra. In the same jurisdiction, the subsequent case of Mehlman v. State, supra, declines to follow its doctrine. In the case of Poon v. State, supra, the holding in Bismark v. State is quoted and applied. In the Poon case, a reversal was ordered because of the admission of testimony to the effect that approximately one month after the crime charged, a similar transaction occurred between defendant and the thieves.
In People v. Willard, supra, the California court say:
"There is no doubt that, when a defendant is shown to have received stolen goods from a thief, evidence of previous dealings with the thief in like transactions is competent to show that defendant at the time knew that the property had been stolen; but we have been cited to no authority, and we know of none, which holds that evidence of subsequent dealings is admissible."
That decision was rendered on December 28, 1891. It will be noted that at that time the California court was without the advantage of the subsequent cases hereinbefore cited, which we think establish the opposite rule to that declared in the Willard case.
In the Montana case of State v. Moxley, supra, the holding upon the point under discussion is dictum because there the similar transactions involved occurred prior to the crime charged.
In Illinois, the law must be regarded "as settled by repeated decisions, that in prosecutions for receiving stolen property, to show guilty knowledge, it is competent to prove that the accused had on other occasions prior to the offense charged received stolen property from the same thieves, and when such former transactions are proved it is admissible to prove subsequent transactions between the same parties, as tending to show a continuous practice of dealing with thieves and the accused's knowledge the property was stolen." People v. Gotler, 311 Ill. 387 (143 N.E. 63).
The English case of Rex v. Head, supra, involves the construction of a statute which is as follows:
"Where proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen property, evidence may be given at any stage of the proceedings that there was found in the possession of such person other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property to be stolen which forms the subject of the proceedings taken against him." Prevention of Crimes, Act. 1871, (34 & 35 Vict. c. 112.) s. 19.
The deputy chairman held that the period of twelve months mentioned in the statute were the twelve months prior to the receipt by defendant of the goods in suit and not the twelve months interval preceding the finding of the property charged to have been received. It is needless to say that Oregon has no such statutory provision.
In the Oregon case of State v....
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