State v. Denny

• Decision Date: 10 October 1908
• Citation: 17 N.D. 519,117 N.W. 869
• Parties: STATE v. DENNY.
• Court: North Dakota Supreme Court

17 N.D. 519

117 N.W. 869

STATE

v.DENNY.

Supreme Court of North Dakota.

Oct. 10, 1908.

Syllabus by the Court.

An instruction defining the term “feloniously” as “an intent to commit a felony or an intent to commit a wrongful act which might result in the commission of a felony,” etc., is erroneous. By the use of the word “might” the jury was told, in effect, that a person is by law presumed to intend all the possible, rather than the reasonably probable, consequences of his voluntarily wrongful act. Said definition was also erroneous as it in effect informed the jury that an intent to commit a wrongful act which might result in receiving stolen property, knowing the same to be stolen, constituted a felonious intent within the meaning of the law relating to the offense charged in the information, to wit, receiving stolen property knowing the same to have been stolen.

Said instruction, although erroneous, was not prejudicial in view of the subsequent explicit instructions given by the trial judge which are referred to at length in the opinion.

In a prosecution for receiving stolen property, knowing the same to have been stolen, it is unnecessary to allege or prove who the thief was. It is accordingly held that an instruction to the effect that it is immaterial who committed the larceny was not prejudicial, in view of state of the proof, which in no manner tended to implicate the defendant in such larceny.

An instruction that “guilty knowledge is made out and sufficiently proven to warrant conviction in that respect by proof that the defendant received the property under such circumstances as would satisfy a man of ordinary intelligence and caution that they were stolen” is erroneous. Such instruction lays down an arbitrary rule for determining guilty knowledge, using as a test facts which would satisfy a man of ordinary intelligence and caution. The standard by which to impute guilty knowledge is not that of a man of ordinary intelligence and caution, but the test is a personal test of the defendant. Under such instruction, no discretion was vested in the jury, and hence the same constituted an invasion of the province of the jury. Spalding, J., dissenting.

Among other things, the jury was instructed as follows: “This felonious intent, to warrant conviction, must have consisted of his intentional receipt of said stolen property, knowing the same to be stolen, with further intent in defendant in receiving the same to deprive the owner of said property, or to derive gain, profit, or consideration himself from receiving or concealing said property or the disposal thereof.” Said instruction was proper, as a person may be convicted, even though he received the stolen property for the purpose of returning it to the owner, if his purpose was also to receive a reward therefor.

On cross-examination of one of the state's witnesses, and for the purpose of impeachment, he was asked whether as a matter of fact he was running a certain saloon in violation of law and without a license. To this question counsel for the state objected, and the objection was sustained. Held error. Such question was admissible under the general rule that for the purpose of impeachment a witness may be asked questions as to collateral matters, the answers to which may tend to degrade or otherwise discredit him.

The state was permitted over defendant's objection to give secondary evidence as to the contents of a certain copy of letter claimed to have been written by one Miller to defendant, and tending to show defendant's guilty knowledge in receiving the stolen property.

Held, for reasons stated in the opinion, that such ruling constituted prejudicial error, for the reason that no sufficient foundation for the introduction of such testimony had been shown.

The state's attorney, who was a witness for the state, was permitted to give his opinion or conclusion to the effect that the alleged copy of letter claimed to have been sent from Montana to defendant was on letter paper different from that in use by the Great Northern Hotel at Williston. He was a nonexpert witness, and his testimony should have been restricted to facts, leaving it to the jury to draw their own inferences or conclusions therefrom.

Certain other rulings in the admission of testimony examined, and held not error.

Evidence examined, and held that the rulings of the trial court in denying defendant's motions to advise an acquittal and for a new trial, in so far as the ground of insufficiency of the evidence is concerned, were correct.

Appeal from District Court, Williams County; E. B. Goss, Judge.

William H. Denny was convicted of receiving stolen property, knowing the same to have been stolen, and from the judgment of conviction and an order denying a new trial, he appeals. Reversed and remanded.

Palda & Burke (Engerud, Holt & Frame, of counsel), for appellant. T. F. McCue, Atty. Gen., and Van R. Brown, State's Atty., for the State.

FISK, J.

The defendant, William H. Denny, was convicted in the district court of Williams county of the crime of receiving stolen property, knowing the same to have been stolen, and was sentenced to imprisonment in the penitentiary for the period of three years. He moved for a new trial upon the grounds, first, of misdirection of the jury, and errors of law occurring at the trial and excepted to by him; second, that the verdict is contrary to law and clearly against the evidence; and, third, that the information does not state facts sufficient to constitute a public offense, which motion was denied on July 29, 1907. From the judgment of conviction, and from the order denying the motion for a new trial, defendant appealed to this court, setting forth 17 assignments of error, which we will dispose of in the order presented in appellant's brief.

The first assignment is based upon the instruction of the court to the jury defining the word “feloniously.” The instruction complained of is as follows: “The term ‘feloniously’ means, when applied to the intent with which an act was done, an intent to commit a felony, or an intent to commit a wrongful act, which might result in the commission of a felony; and under our statutes the crime of receiving stolen property, knowing the same to have been stolen, is a felony.” We agree with appellant's counsel that the instruction is faulty. An essential ingredient of the crime is the felonious or wrongful intent in receiving the stolen property. By the use of the word “might” in defining the term “feloniously” the jury was told that a person is by law presumed to intend all the possible, rather than the reasonably probable, consequences of his voluntarily wrongful act. This we think was error. People v. Munn, 65 Cal. 211, 3 Pac. 650;People v. Rockwell, 39 Mich. 503. Said definition was also erroneous, as it in effect informed the jury that an intent to commit a wrongful act which might result in receiving stolen property, knowing the same to be stolen, constituted a felonious intent within the meaning of the law relating to the offense charged. As said by the Court of Appeals of New York in People v. Hartwell, 166 N. Y. 361, 59 N. E. 929: “A person may receive stolen property, knowing it to be stolen, for the purpose of returning it to the true owner, and not be guilty of any crime. It is only where the property is received, knowing it to have been stolen, with the criminal intent to deprive the owner of the property, that the receiver is punishable. * * * A person may receive property from another, and at the time of receiving it may intend to retain it and thus feloniously deprive the owner thereof, and still have no knowledge that the property had been stolen. By so retaining the property, he may become guilty of larceny, but he would not be guilty of the crime charged by the provisions of the Code under consideration.” Although the said instruction was erroneous for the reason above stated, still, when considered in connection with the entire charge to the jury, we are not prepared to hold that the same was prejudicial to the defendant. Later in the instructions the jury was distinctly told that, unless they found from the evidence beyond a reasonable doubt that every material allegation of the information was true, they should acquit; and they were instructed that among the material allegations thereof were the following:

“(5) That the defendant, William H. Denny, did willfully, unlawfully, and feloniously and knowingly and for a consideration receive said stolen personal property.

(6) That at the time said William H. Denny received into his possession said personal property he did so willfully, unlawfully, and feloniously, and knowing that said personal property had been feloniously stolen and received the same, with intent to deprive the owner thereof.”

Still later in the charge the jury was instructed as follows: “In this connection also comes the question of the intentional receiving of said property, if the same was received by defendant, knowing the same to have been stolen, as the defendant must have intentionally received said property with guilty knowledge-that is, with knowledge that the same was stolen property-to be guilty of the charge contained in the information, that of receiving stolen property, knowing the same to have been stolen. The knowledge of the stolen character of the property must have been in the mind of the defendant at the time of the receiving of the same, if he did receive it; and, if the defendant received said property without knowledge that the same was stolen property, and after the reception thereof learned that the same was stolen, the defendant cannot be found guilty. And, in addition to the reception of said property with knowledge that the same was stolen, before the defendant can be found guilty you must find that he took said horses, or received them, with the intent to deprive the owner thereof.” In view of these explicit instructions, we are unable to...