State v. Dutch Ioldstroiim.

Decision Date06 May 1919
Citation84 W.Va. 129
PartiesState v. Dutch Ioldstroiim.
CourtWest Virginia Supreme Court

1. Indictment and Information Former Conviction Identity of Party Allegation.

Where an indictment for a felony alleges a former conviction and confinement in the penitentiary, as provided in section 23, Ch. 152, Code, it is sufficient if the indictment avers the former conviction with such particularity as reasonably to indicate the nature and character of the offense, and identifies the person subsequently indicted as the person then convicted. The latter requirement is sufficiently met where the indictment, after setting forth the former conviction of D. G, describes the person now indicted as "the said D. G., having been so convicted of felony as aforesaid." (p. 130).

2. Criminal Law Indictment and Information Former Conviction Allegations ^-Burden of Proof.

Nor need the indictment contain an averment that the former conviction has not been vacated, set aside or reversed. If such be the case, the burden rests upon accused to establish the fact by proof offered upon the trial. (p. 130).

3. Same Receiving Stolen Goods Knowledge Evidence.

Upon the trial of an indictment for buying or receiving stolen property, knowing it to have been stolen, such knowledge is an essential element of the offense, and, as bearing upon that question, evidence of the conduct and statements of defendant in reference to stolen property in his possession and explanatory of the reason and character of such possession, if made while such possession continues, and especially if offered at a time when he is first called upon by the circumstances of the case to make such explanation, is admissible both for and against him. (p. 134).

4. Same Enovjledge Evidence.

The theory of the admissibility of such evidence is that the statements which accused has made characterizing or describing Ms possession, while it continued, partake to some extent of the mature of an explanation of the circumstances connecting him with the criminal act. (p. 134).

5. Same Explanation Weight of Evidence.

The jury may accord to such evidence the weight they may deem it entitled to when considered in connection with other facts and circumstances proved upon the trial. (p. 134).

Same Bill of Exceptions Signature.

A bill of exceptions must be signed by the judge of the trial court, else the matter it contains cannot be considered in the appellate court. (p. 138).

(Miller, President, absent).

Error to Circuit Court. "Wood County.

Dutnh Goldstrohm was convicted of receiving stolen goods Hinder an indictment alleging his former conviction of a similar offense, and he brings error.

Reversed, and remanded for new trial.

Geo. II. Harris, R. E. Bills and Cllas. E. Hogg, for plaintiff in error.

E. T. EnglandJ Attorney General. Charles RitcMe, Assistant Attorney General, and James H. Wade, for the State.

LYnch, Judge:

To a judgment of conviction and confinement in the penitentiary upon an indictment charging him with the receipt of stolen propertv with knowledge of the larceny thereof, Dutch Goldstrohm obtained this writ. Though the assignments of error are numerous, defendant has elected to rely exclusively upon two only, deeming them to be the issues most vital for the purpose of this review, and with these and none other does this diseuss'on deal. There is no substantial merit In the others, as counsel virtually concede, and they involve mo new legal questions.

lie first challenges the sufficiency of the indictment, par- tieularly the averments pertaining to an alleged former conviction for a similar offense, namely, the larceny of property. Of the similarity of these two offenses, though not material under section 23, ch. 3 52, Code, there is no question, nor can there he any. Though the offense of buying or receiving stolen goods, knowing the same to have been stolen, is in point of time and participation only one degree removed from the actual asportation or theft thereof, yet the connection between the two is so close and the relation so intimate that the legislature deemed it expedient to prescribe the same penalty for each of them. For if any person buy or receive from another or aid in concealing stolen goods or other thing, knowing the same to have been stolen, he is to be dealt with as if he were the real thief. Section 18, ch. 145, Code. Likewise, if he is indicted for a simple larceny and upon the trial it appears that he did not actually steal the property but did receive it with knowledge of the theft, he is nevertheless guilty of the larceny and amenable to the same penalties. Price v. Com., 21 Gratt. 846; 'Stale v. Halida, 28 W. Va. 499. This is also true where a man is indicted for a simple larceny of a thing under section 23, ch. 115, Code, and the proof shows that he obtained it under a false pretense or representation with intent to defraud (State v. Halida, supra; State v. Ed- wards, 51 W. Va. 220, 229: State v. Williams, 68 W. Va. 86); or under section 19, ch. 1-15, Code, and the proof shows embezzlement by defendant of the property alleged to have been stolen. State v. DeBcrry, 75 W. Va. 632; Swick v. Bassell, 77 W. Va.. 78; Pitsnogle v. Com., 91 Va. 808. In otherwords, upon an indictment simply charging larceny the state may show either that the subject of the larceny was received with knowledge that it was stolen, or that it was obtained by a false pretense with intent to defraud, or was obtained by embezzlement. So that the rules of evidence applicable to simple larceny apply alike so far as pertinent to each of these various offenses against the proprietary rights of the owner.

After an adverse ruling upon his motion for a continuance, defendant on April 29 tendered and the court accepted and entered of record the general issue plea, which three days

later he moved for leave to withdraw and also moved to quash the indictment, both of which motions the court overruled. This action did not operate to his prejudice or to deprive him of any legal right if the indictment contains sufficient averments to meet the criticisms urged against it. These are, first, the failure to identify defendant as the person proceeded against for the two offenses described in the indictment, that is, the larceny committed by him in April, 1909, for which he was convicted in September of the same year, and the receipt of the property alleged to have been stolen in February, 1918, of the conviction of which he now complains; and, second, the failure to aver that the former judgment of conviction still is in full force and effect and not in any manner reversed or made void.

Upon the question of identification there is no substantial basis for the existence of any doubt. There is no direct or positive averment that the accused is the same person who Committed both felonies, nor does the form of indictment prescribed by Archbold, Crim. Pr. & PL, p 1680, require such an averment. Omitting the usual phraseology, the form prescribed by the author shows by way of identifying the accused that he (A. B.) was presented by a former grand jury for a felony, as by the record of the indictment more fully and at large appears, and that the said A. B., after having been so convicted etc., afterwards committed another felony etc. In this respect there is not any substantial difference between the two formal accusations, though the one now before us is more elaborate, as it sets forth in extenso the felonious charge upon which defendant was convicted in 1909, and describes him as "said Dutch Goldstrohm" pursuant to the form prescribed by Archbold, thereby making perfect the identity of the person concerned, which was further substantiated by proof upon the trial. Further amplification in this regard is not required. It is sufficient if the indictment avers the former conviction with such particularity as brings the accused within the terms of the statute (section 23, ch. 152, Code) providing for the additional punishment sought by the prosecution and imposed by the judgment, and identities the offenses by a description of their nature and character. Wilde v. Com., 2 Met. (Mass) 408; State v. Robinson, 39 Me. 1.50. Technical accuracy in this respect is not required. State v. Wenhvorlh, 65 Me. 234; State v. Small, 64 N. H. 491.

Upon the second point of challenge we hold the indictment also good beyond question, although it does depart from the old forms in that it omits the averment that the judgment is still in full force and effect, and not in any manner reversed or made void. The Supreme Court of Virginia in dealing with a statute of which ours is a duplicate justified a conviction upon an indictment not containing such clause, though apparently no question was raised as to its sufficiency. Stover v. Com., 92 Va. 780. As to the facts necessary to be averred see Underbill, Crim. Ev. (2d Ed.), § 510. This author at section 514 says: "The state is not bound to prove as part of its case that the prior conviction has not been vacated, set aside or reversed, and if such be the case the burden of proof is on the accused." Tall v. Com., 33 Ky. L. 541. The Supreme Court of Minnesota cites with approval and adopts the rule laid down by Underhill, and adds what seems to us to be just and reasonable: "The judgment appearing fair upon its face, the presumption arises that it was at the time of the trial still in force and effect." State v. Findling, 123 Minn. 413.

Defendant seriously, and properly we think, according to the great Aveight of authority, complains of the rejection of the testimony of himself and police lieutenant Fleming relative to a conversation had between them regarding defendant's possession of the property alleged to be stolen and the manner of his acquiring it, as throwing light upon the question of his knowledge of the theft thereof at the time of its acquisition by him.

It is well settled that when a larceny is complete the voluntary abandonment, of the...

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