State v. Ebbeller

• Decision Date: 04 June 1920
• Docket Number: No. 21887.,21887.
• Citation: 222 S.W. 396,283 Mo. 57
• Parties: STATE v. EBBELLER.
• Court: Missouri Supreme Court

222 S.W. 396

283 Mo. 57

STATE v. EBBELLER.

No. 21887.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Frank Ebbeller was convicted of knowingly receiving a stolen automobile, and he appeals. Reversed and remanded.

Upon an indictment charging him with receiving a stolen automobile knowing the same to have been stolen, defendant was convicted in the circuit court of the city of St. Louis, and his punishment fixed at two years' imprisonment.

In appellant's brief no point is raised as to the sufficiency of the evidence. Only two errors are assigned, and they have to do with the giving of instructions. Such facts as are necessary to an understanding of the issues presented will be stated in the course of the opinion.

Thos. B. Harvey, of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State.

WILLIAMS, P. J.

I. The court's instruction No. 2, which is attacked by appellant, is as follows:

"By the term `knowing' that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard, and would cause such a man exercising such caution, and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.

"The mere naked fact of the possession of said property by the defendant raises no presumption that the defendant knew that said property had been stolen by another."

It is contended that the above instruction is erroneous, in that it permits a conviction, even though the defendant may not have had guilty knowledge that the property had been stolen.

It will be noticed that the instruction does permit a conviction if the facts were such as (in the opinion of the jury) would have caused a reasonably prudent person, exercising ordinary caution, to have believed that the property had been stolen at the time received.

We are inclined to the view that this point is well taken, and that the learned attorney representing the appellant is correct in stating that—

"The question is not what some other person would have believed and known from the circumstances attending the receipt of the property, but what did this defendant believe and know."

In the case of Kasle v. United States, 233 Fed. 878, 147 C. C. A. 552, the Circuit Court of Appeals for the Sixth Circuit, had before it this identical question. The language used in condemning a like instruction is so clear and concise that we feel justified in quoting the following excerpt therefrom:

"Plainly such tests as these of guilty knowledge on the part of the accused subjected him to a standard of conduct and of capacity to detect crime, which the jury might conclude to be the standard of reasonable and honest men of average intelligence, when acting under circumstances like those which might be found to have existed here. The effect of such test was to charge the accused with guilty knowledge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at last, the accused might be condemned even if his only fault consisted in being less cautious or suspicious than honest men of average intelligence are of the acts of others. The result of the rule of the charge would be to convict a man, not because guilty, but because stupid. The issue was whether the accused had knowledge—not whether some other person would have obtained knowledge— that the goods had been stolen. The circumstances must have had that effect upon the mind of the accused, to constitute knowledge in him. The issue must be determined upon the individual test of the accused. It may well be that the tests stated in the charge are proper enough to fix civil liability for the acts or omissions of a defendant, but hardly to fasten upon him an intent to commit a felony. There is some conflict in the decisions upon this subject, but we think the tests of the charge are opposed to the clear weight of authority. This may be fairly illustrated by the following: State v. Alpert, 88 Vt. 191, 204, 92 Atl. 32; Peterson v. United States, 213 Fed. 920, 922, 923, 130 C. C. A. 398 [C. C. A. 9]; State v. Rountree, 80 S. C. 387, 391, 61 S. E. 1072, 22 L. R. A. (N. S.) 833; State v. Daniels, 80 S. C. 368, 371, 61 S. E. 1073; State v. Goldman, 65 N. J. Law, 395, 397, 47 Atl. 641; Cohn v. People, 197 Ill. 482, 485, 64 N. E. 306; Robinson v. State, 84 Ind. 452, 456; State v. Denny, 17 N. D. 519, 525, 526, 117 N. W. 869; Forrester v. State, 69 Tex. Cr. R. 62, 152 S. W. 1041, 1042; Pickering v. United States, 2 Okl. Cr. 197, 101 Pac. 123, 124; Drummond v. State, 103 Miss. 221, 224, 60 South. 138." 233 Fed. 887, 147 C. C. A. loc. cit. 561.

Further discussion or citation of authority is, we think, entirely unnecessary to establish clearly the grave error which this instruction contains,. but in passing it is necessary that we refer to some former decisions of this court which might be thought to indicate a contrary view.

In support of his contention that the instruction is proper, the learned Attorney General cites State v. Cohen, ...