State v. Baker.

• Decision Date: 06 May 1919
• Parties: State v. Baker.
• Court: West Virginia Supreme Court

84 W.Va. 151

State

v.Baker.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1919.

Decided May 6, 1919.

1. Criminal Law Evidence Testimony of Conspirators.

A prima facie ease of conspiracy between defendant and another, or others, in the commission of a crime having been established, acts and declarations during its progress, by any one ot them, whether defendant is present or absent, is admissible as evidence against him; but not declarations made after the transaction is ended. (p. 152).

2. Same Other Offenses-Scienter Evidence.

On the trial of one charged with receiving stolen goods, evidencethat he received other stolen goods, knowingly or ignorantly, either prior or subsequent to the time of the offense charged. is admis--sible to prove a scienter, provided such other collateral acts are not too remote in point of time. (p. 154).

3. Same Bes Gestae Acts and Declarations Upon Beceiving Stolen Goods.

Acts and declarations by accused on receipt of stolen goods, or on his arrest while the goods are in his possession, are parts of the res gestae, and evidence of them is admissible whether it be for or against him. (p. 155).

4. Same Bes Gestae Conduct and Statements of Accused.

To constitute the conduct and statements of accused parts of the res gestae, it is not necessary that they should be precisely concurrent with the act charged; it is sufficient if they spring from it and are done and made under circumstances precluding design. (p. 155).

5. Same Assignment of Error Sufficiency.

An assignment of error relating to the rejection of proffered evidence, or refusal to permit a witness to testify, who has violated the court's order excluding witnesses from the court room during the hearing of testimony, not excepted to, will not be considered on writ of error. (p. 157).

6. Same Purpose of Evidence Requested Instruction Complaint.

A party who has failed to request the court to instruct the jury for what purpose certain evidence was received, which is admissible for a particular purpose only, cannot complain, (p. 157)

(Miller, President, absent). Error to Circuit Court, "Wood County.

Monroe H. Baker and Burns Cottrill were jointly indicted for buying and receiving stolen goods, and defendant Baker was tried separately and convicted, and he brings error.

Reversed and remanded for new trial.

Chas. E. Hogg and R. E. Bills, for plaintiff in error.. E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, and Jas. 8. Wade, for the State.

Williams, Judge:

Defendant and one Burns Cottrill were jointly indicted for buying and receiving from William Gilman and Wilbert Peebles stolen goods, the property of the Germania Club, a-corporation, knowing them to be stolen. Defendant was tried separately, convicted and sentenced to five years imprisonment in the penitentiary, and he brings error.

He assigns as error the admission of declarations made by "third parties, not in his presence. This relates to conversations which occurred between Gilman and Peebles, the two principal prosecuting witnesses, and Burns Cottrill concerning the sale to the latter of the stolen property; consisting of poker chips, cards, cigars and three billiard balls, alleged to be worth in all $25.00. The prosecuting witnesses admit they stole the articles from the Germania Club rooms, in the City of Parkersburg. They swear they entered the building twice in the same afternoon, the first time stealing eleven pints of whiskey, put up in pint bottles, and the second time, the property named in the indictment; that a boy named Charles Rudy, who was with them, took two pints home with him, and they took the remaining nine up to the high school building and hid them in a garbage can, and came down on Eighth Street and saw Monroe Baker the defendant. Gilman swears he sold defendant four cigars that he had stolen out of the Germania building., for five cents; that defendant asked him where he got them and he told him. at the Germania Club, and defendant said "to be careful." Witnesses swear they then told him about the whiskey and where they had put it, and that defendant said to them, in case they conld not sell it, to bring it to him and he would buy it. Later in the afternoon, nearly dark, these two boys, Gilman and Peebles, swear they again came back on Eighth Street and met Burns Cottrill, and asked him where Mon Baker was, and that Cottrill replied that he was busy, they couldn't see him and asked them what they wanted with him, and they told him they had some whiskey they wanted to sell him; that Cottrill said "to wait and he would go and see Mon," and immediately left them and went across the street and up into Baker's apartments, which were on the third floor, over Stout's drug store; that in a short time Cottrill returned and the three then went, up to the high school building, where the whiskey had been hidden, and discovered that seven pints of it had been stolen, and they sold the remaining two to Cottrill for $1.50. They say Cottrill asked them where they got the whiskey, and they told him at the Germania Club, and also told him there were poker chips and cards up there, and Cottrill replied that, "Mon needed poker cards and would give us twenty cents a deck for all cards with unbroken seals; that men would go up there to play and Mon wouldn't use cards that hadn't unbroken seals." Gilman swears Cottrill was then employed by defendant. After this conversation with Cottrill, witnesses swear they went back and entered the Germania Club rooms the second time, and stole the cards, poker chips, cigars and three billiard balls, and had part of them in a basket; that they met Cottrill on Sixth Street in front, of the Parkersburg Fish & Oyster Market and there sold him some of the articles for $3.00: that he said it was too dark to see the other things, and to take them up to Baker's apartments; that they then followed hira up to the toilet room in Baker's apartments and there sold him the balance of the stuff for $5.00, making $8.00 in all; that they were not allowed in Baker's room and did not see him while up there, but did see him on the sidewalk when they came back down the stairs, and he asked them if they had seen Cottrill and they told him they had, and had sold him some poker chips, billiard balls and stogies for $8.00, and he replied," Go a little careful, '' and then they separated. This evidence sufficiently connects defendant with the transaction between Cottrill and the culprits to establish a prima facie case of conspiracy between Cottrill and defendant and makes the declaration of either one, made while engaged in the commission of the crime, competent evidence against the other. Declarations and conversations of a conspirator, made in furtherance of the common purpose or during the progress of the crime, are competent evidence against a co-conspirator. "On its being shown that one or more persons were acting in concert with the defendant about the thing in question, all with a common object, declarations during its progress, by any one of the others, whether present or absent, may be given in evidence against the defendant; yet not declarations after the transaction is ended."2 Bishop's New Crim. Proc, §1248. State v. Cain, 20 W. Va. 679, and State v. Prater, 52 W. Va. 144.

Evidence of a like offense, committed subsequently to the one charged, was admitted over defendant's objection, of which he complains. About a week after the boys had burglarized the Germania Club and had been arraigned for it and placed under bond, Jhey entered a dwelling house and stole therefrom three quarts of whiskey and a quart of gin, and were allowed to testify that they sold the whiskey to defendant. An essential element of the crime of receiving stolen goods is the scienter or guilty knowledge at the time they were received. This testimony was admissible as evidence of defendant's guilty knowledge when he made the previous purchase for which he is indicted. Such evidence, says Wigmorc, Vol. 1, § 325, is received to prove guilty intent on the theory that the oftener one is found in possession of stolen goods, the less likely it is that his possession, on the occasion charged, was innocent.

"It is not a question of specifically proving knoAvledge; it is merely a question of the improbability of an innocent intent. Several practical differences result: (1) It is immaterial whether in the other instances a knowing possession is shown. It is the mere fact of the repeated possession of other stolen goods that lessens the chances of innocence. (2) It is immaterial that the other goods were similar in kind to those clmrged. or were received from the same person. On the contrary, the greater the variety of the goods and of the sources they came from, the more striking the coincidence; and the more difficult to believe that the explanation is an innocent one. (3) It is immaterial whether the other possessions occurred before or after the possession charged; it is the multiplication of instances that affects our belief, and not the time of their occurence, provided the time is not so distant as to be accountable for on the theory of chance acquisition." 1 Wigmore on Evidence, supra.

Evidence of other similar acts, whether prior or subsequent to the act charged, is also admissible to show a plan or system. The fact to be ascertained is one of induction, and the greater the number of consistent facts the more certain is the induction. "The. time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. In order to prove purpose and design, evidence of...