State v. Jacob

• Decision Date: 12 February 1889
• Citation: 30 S.C. 131,8 S.E. 698
• Court: South Carolina Supreme Court
• Parties: State v. Jacob et al.

8 S.E. 698

(30 S.C. 131)

State

v.Jacob et al.

Supreme Court of South Carolina

February 12, 1889

1. Receiving Stolen Goods—Evidence—Guilty Knowledge.

On a trial for receiving stolen goods, evidence that defendants had received other stolen goods than those described in the indictment about the same time, and stolen from the same person is admissible, as tending to show guilty knowledge, though it does not appear that defendants knew that the other goods were stolen.

2. Criminal Law—Remarks of Judge.

A witness for the state, B., identified the goods found in defendants' possession, and alleged to have been stolen, relying on a private mark, but was directly contradicted by one defendant. The court charged: "Now, do you believe B.? It is not a question as to B. 's veracity. I have heard no evidence against her veracity. But counsel argue that B. was mistaken, " etc. Held not an expression of opinion on matters of fact.

3. Same—Expression of Opinion on Facts.

B. testified that one of the articles had her private mark on it, and that such mark had not been put on it since it had been taken from defendant's possession. Defendant testified that it had no mark on it when taken from her possession. B. 's veracity was not impeached, and the inquiry was as to whether she might not have been mistaken. The court charged that it was improbable that the mark was put on the article after it left defendant's possession without B. 's knowledge, and thatif the jury decided "that the witness had willfully misstated a fact, " they might find that she had misstated other facts to her advantage. Held an expression of opinion on facts, requiring a new trial. McGowan, J., dissenting.

4. Criminal Law—Trial—Instructions.

It is not error to charge that the jury are presumed to know the character of the witnesses, having been drawn from the vicinage for that reason.

5. Same—Challenges of Jury.

On commencing the trial, the court announced that defendants were each entitled to twenty peremptory challenges, but, after each had challenged two jurors, held that they were each entitled to five challenges only, which was legally correct. Held not ground for new trial.

Appeal from general sessions circuit court of Fairfield county; Norton, Judge.

Indictment of Robert Jacob and Patsy Jacob for receiving stolen goods. Defendants were convicted, and appeal.

Chas. A. Douglass, aud Ragsdale & Ragsdale, for appellants. J. E, McDonald, for the State.

McIver, J. In this case the defendants were indicted for reveiving stolen goods, exceeding the value of $20, knowing them to have been stolen. When the case was called for trial the circuit judge directed that the defendants be arraigned, and announced that they were each entitled to twenty peremptory challenges. After each of the defendants had peremptorily challenged two of the jurors presented, the judge reconsidered his ruling, and held that the defendants were each entitled to only five peremptory challenges, to which ruling exception was duly taken by the counsel for defendants. After exhausting their remaining challenges of three each, under the final ruling of the circuit judge, the jury was organized, and the trial proceeded. "Upon the trial of the cause, the presiding judge admitted as competent, against the exception of defendants' counsel, testimony going to show defendants' possession of goods alleged by prosecutor to have been stolen from him, and to the identity of which he testified, said goods not having been alleged or described in the indictment. " The charge to the jury appears to be set out in full in the case, and in it we find this language in reference to the testimony thus objected to: "I have said before, during this trial, that the testimony in regard to a quantity of these goods was introduced for the purpose of showing the guilty knowledge of the defendants, but for no other purpose was that necessary; " and the jury were explicitly instructed that they could not find the defendants guilty unless they believed that they had received some or all of the articles mentioned in the indictment, knowing them to have been stolen, even though they might come to the conclusion that some or all of the goods not mentioned in the indictment were so received by the defendants. The jury having found the defendants guilty, they were each sentenced to pay a fine of $150, and be imprisoned in the penitentiary, at hard labor, for four months.

Defendants appeal, substantially, upon the following grounds: The first ground, having been abandoned, need not be stated. The second and third grounds allege error in receiving testimony as to the possession by the defendants of stolen goods other than those laid in the indictment. The fourth ground complains of error on the part of the circuit judge in instructing the jury that they were presumed to know the character of the witnesses, and might take that into consideration in making up their verdict. The fifth and sixth grounds complain that the circuit judge invaded the province of the jury by charging on the facts, in the particulars which will hereinafter be specified. The seventh ground complains that defendants were misled by the change in the rulings of the circuit judge in regard to the number of challenges to which they were entitled, and that for this reason their motion for a new trial in the court below should have been granted.

It does not seem to us that there was any error in receiving the testimony which is made the basis of the second and third grounds of appeal. As appears from the extract made from the judge's charge above, this testimony was received solely as a circumstance tending to show guilty knowledge on the part of the defendants, and the jury were carefully instructed to consider it only in that light. As is said in 1 Greenl. Ev. § 53, note b: "The general rule undoubtedly is that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely that he would commit another. In all criminal cases, however, where the felonious intent or guilty knowledge is a material part of the crime, evidence is admissible of similar acts of the prisoner at different times, if such acts tend to prove the existence of such guilty knowledge or felonious intent. " One of the illustrations there given is this very charge of receiving stolen goods, where the gist of the offense is the guilty knowledge of the party charged. See the cases there cited. So in Rose. Crim. Ev. 92, the author, in speaking of this subject, says: "There are three classes of offenses in which, from the nature of the offense itself, the necessity for this species of evidence is so frequently necessary that they will be considered separately. These are conspiracy, uttering forged instruments or counterfeit coin, and receiving stolen goods. In these, the act itself, which is the subject of inquiry, is almost always of an equivocal kind, and from which malus animus cannot, as in crimes of violence, be presumed; and almost the only evidence which could be adduced to show the guilt of the prisoner would be his conduct on other occasions. "

In Rex v. Wylie, 1 Bos. & P. (N. R.) 92, it was held that, on the trial of an indictment for uttering a forged note, knowing it to have been forged, it was competent to show that the prisoner had previously passed other forged notes not mentioned in the indictment to other persons, for the purpose of proving the scienter, and the same doctrine has been held in this state in at least three cases. State v. Petty, Harp. 59; State v. Houston, 1 Bailey, 300; State v. Williams, 2 Rich. Law, 418. Upon the same principle it seems to us clear that the same doctrine should be applied in the present case. The mere fact that a person has passed one forged note or has received a single article of stolen goods might furnish but slight evidence that, in the one case, he knew the note was forged, or, in the other, he knew the article was stolen; but if it is shown that he has passed a number of forged notes, or has received a considerable number of stolen articles, this certainly tends to show a guilty knowledge, and, if so, then it is competent, and it will be for the jury to consider its weight. It is, however, ingeniously argued by the counsel for appellants that testimony that the accused has received other articles of stolen property than those mentioned in the indictment, even for the purpose of showing the scienter, is not competent, unless it appears that the accused received such other articles knowing...