State v. Denny

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

117 N.W. 869

17 N.D. 519

THE STATE OF NORTH DAKOTA v. WILLIAM H. DENNY

Supreme Court of North Dakota

October 10, 1908

Appeal from District Court, Wiliams county; Goss, J.

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.

Reversed and remanded.

Palda & Burke, (Engerud, Holt & Frame, of counsel), for appellant.

Charge must cover substantive elements of the crime. State v Fordham, 13 N.D. 502, 101 N.W. 888.

Felonious or wrongful intent essence of the crime. O'Connel v State, 55 Ga. 191; Rice v. State, 50 Tenn. 215; Revised Codes 1905, section 9199.

Use of the word "might" causes the meaning of possible instead of probable consequences of defendant's acts. People v. Munn, 3 P. 650; People v Rockwell, 39 Mich. 503; People v. Sweeney, 22 N.W. 50.

The identity of the thief, other than the defendant, is immaterial. Wharton Criminal Law, (9th Ed.) volume 1, section 986.

The standard to determine guilty knowledge is not ordinary intelligence and caution, but the test is a personal test of the defendant. State v. Hazlett, 16 N.D. 426, 113 N.W. 374.

Before the admission of the contents of a lost paper, all sources of information, and means of discovery which the nature of the case suggests, must be exhausted. McManus v. Commow, 10 N.D. 340, 87 N.W. 8; Bogen v. McCutcheon, 48 Ala. 493; Calhoun v. Thompson, 56 Ala. 166; Watson v. State, 63 Ala. 19; Bolden v. State, 15 So. 341; O'Neill v. McKinna, 49 So. 105; Norris v. Russell, 5 Cal. 249; Taylor v. Clark, 49 Cal. 671; Wells v. Adams, 1 P. 698; Billen v. Henkle, 13 P. 420; Lott v. Buck, 39 S.E. 70; Post v. School District, 26 N.W. 911; Smith v. Axtel, 1 N.J.Eq. 494.

A witness must state facts, not his inferences therefrom. Smith v. N. P. Ry. Co., 3 N.D. 555, 58 N.W. 345; Musick v. Latrobe, 39 A. 226; Perry v. Graham, 18 Ala. 822; Largen v. Central Ry. Co., 40 Cal. 272.

T. F. McCue and Van R. Brown, for respondent.

The definition of "feloniously" as "with intent to commit a felony," was correct. State v. Jesse, 17 N.C. 297; State v. Snell, 78 Mo. 240; State v. Rechnitz, 52 P. 264; State v. Smith, 71 P. 767; People v. Dumar, 5 N.Y. Cr. Rep. 55; State v. Dustraw, 137 Mo. 44; State v. Douglas, 53 Kan. 70, 37 P. 172; U. S. v. Greve, 65 F. 489.

In a prosecution for receiving stolen property, name of the person stealing need not be alleged or proven. Commonwealth v. Hogan, 121 Mass. 373; Commonwealth v. King, 9 Cush. 284; People v. Caswell, 21 Wend. 86.

The evidence was sufficient to justify the verdict. Williams v. State, 21 N.W. 56; Palmer v. People, 4 Neb. 73; Hurley v. State, 6 Ohio 400; State v. Crewes, 16 Mo. 391; State v. Elliott, 15 Iowa 72; Wolf v. State, 11 Ind. 231; Guiles v. State, 6 Ga. 272.

FISK, J. MORGAN, C. J., concurs, SPALDING, J. (concurring specially).

OPINION

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 P. 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 can 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 see how the defendant could have been prejudiced by the above definition of the term "feloniously."

Assignment No. 2 challenges the correctness of that portion of the instructions wherein the jury was told "that the person committing said larceny from the owner thereof is immaterial." Counsel argue that it is necessary that the person who commits the larceny should be some one other than the defendant or person receiving it, because, if the defendant had himself committed the larceny, he could not have been found guilty of the crime charged, as they are distinct. Granting the soundness of this contention, we are unable to agree to the conclusions reached by counsel. It was unnecessary for the state to allege or prove who the thief was, and there was not even an intimation that defendant stole the property, and the presumption is that he did not. How then can it be claimed that the jury may have believed that defendant was an accomplice in the larceny? There was no foundation for such a belief; and hence there is no force in the contention that the jury might have understood from the instruction that they could convict defendant, even though they found that he committed the larceny or was an accomplice thereto.

The next assignment calls in question the following instruction "Guilty knowledge is made out and sufficiently proven to warrant conviction in that respect by the proof that the defendant received the property under such circumstances as would satisfy a man of ordinary intelligence and caution that they were stolen." Immediately following the above is the further instruction: "The jury is further instructed that, if you find that all the facts and circumstances surrounding the receiving of the horses by the defendant were such as would reasonably satisfy and convince a man of defendant...