State v. Keays

• Decision Date: 14 July 1934
• Docket Number: 7255.
• Citation: 34 P.2d 855,97 Mont. 404
• Parties: STATE v. KEAYS.
• Court: Montana Supreme Court

34 P.2d 855

97 Mont. 404

STATE v. KEAYS.

No. 7255.

Supreme Court of Montana

July 14, 1934

Appeal from District Court, Blaine County; C. B. Elwell, Judge.

Roy H Keays was convicted of receiving stolen property with knowledge that it was stolen, and he appeals.

Reversed and remanded.

West & Stromnes, of Great Falls, and Robert T. Merrill, of Havre for appellant.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and D J. Sias, of Chinook, and E. V. Ahern, of Havre, for the State.

STEWART Justice.

This is an appeal from a judgment of the district court of Blaine county. Roy H.

Keays was convicted under section 11388, Revised Codes 1921, of the crime of receiving stolen property, knowing the same to have been stolen. The property involved is described in the information as a gray mare branded S/X (S bar X) on the right shoulder, the property of one Ben Davis.

The animal was stolen by one James Kirwan and delivered to the stockyards at Chinook on January 2, 1933. On the next day Keays went to Chinook, either by car with Kirwan, or on the train, and purchased a carload of horses from different parties. The animal was sold to him by Kirwan for the going price of 15 dollars; this was about the price paid for such animals in that region at the time. Kirwan sold several horses to the defendant that day; most of them he afterwards admitted were stolen. Keays arranged for an official inspection of the horses he bought, and none were loaded without such inspection. The inspection was made by James McCoy, the regularly constituted inspector. McCoy made a list of all horses, with general description and particular designation of brands. He listed the animal as a gelding, and on the witness stand in this case said: "It could have been possible that the animal was a mare, but I don't think it was. You might make a mistake on that. I generally try to get which sex it is."

The shipment was billed to Ravenna, Ohio, and later diverted to Moorhead, Minn., where the horses, including the animal in question, were offered for sale at public auction. The Davis animal was not sold at the auction, but was later sold at private sale to one Odegaard. The horses were traced by the stock inspectors and the owners, and as a result Kirwan was arrested and prosecuted for grand larceny. He finally pleaded guilty to the charge, and was given a sentence of two years in the state prison. At the time of the trial of Keays, Kirwan appeared as a witness for the state and testified to the details of the whole matter.

Keays lived at Great Falls, but had been engaged in the horse buying business at various points in northern Montana. It was his custom to let it be known that he would be at a given point on a certain day for the purpose of buying horses; he would then select and purchase a carload from the offerings of the local people, and thereafter have them inspected and shipped direct from the point of purchase to some place out of the state for sale.

Evidence of the purchase and shipment of several carloads of horses made shortly before the January 3d shipment, and at least one carload soon after that time, was admitted. Proof was adduced to show that there were one or more stolen horses in each of these shipments.

The Davis animal shipped in the January 3d shipment was bought from Kirwan, and Keays claimed he purchased it and that the stock inspector passed it on the strength of a bill of sale exhibited by Kirwan. This bill of sale covered several horses and bore the signature of one Tom Moran. It was witnessed by one Breitenstein, a hotel man at Havre. The bill of sale was exhibited to the stock inspector, but was not retained by him. Kirwan later testified that the Moran bill of sale was not genuine; he gave his own bill of sale for this and the other animals sold by him to Keays that day. Keays claims that he relied on these bills of sale, and as a result paid full value for the horses, and that he did not know or suspect that any of them were stolen; that there was nothing to suggest that any of the property sold to him had been stolen.

The jury returned a verdict of guilty against Keays, and the court imposed a sentence of three years in the state prison. Thereafter a motion for new trial was made and overruled.

It may be observed that the only issue left for determination by the jury was the question of Keays' knowledge of the fact that the animal in question was stolen. This very element is the prime essential in every prosecution for the offense charged. It must not be forgotten that the crime of receiving stolen property defined in the section under which this case was prosecuted (section 11388, supra) is a distinct statutory crime. State v. Huffman, 89 Mont. 194, 296 P. 789. While it is true that the fact of the property having been stolen is important, the establishment of that fact alone is not sufficient to sustain a conviction for the separate and distinct crime here under consideration. "Guilty knowledge, involving guilty intent, on the part of the defendant, is essential to the constitution of the offense." Wharton on Criminal Law (12th Ed.) p. 1546. This principle must be kept in mind in the consideration of the assignments of error involved in this appeal.

Defendant has made and urges fifty-six assignments of error. The most serious one involves the giving of instruction No. 12. This instruction was offered by the state; when offered it was not quite the same as given. It reads as follows: "You are instructed that if you believe from the evidence that the gray mare branded S bar X on the right shoulder was stolen, that whether defendant knew that such animal was stolen is to be determined by all of the facts in the case. It is not necessary that he should have heard the fact from the eye-witness. He is required to use circumspection usual with persons taking horses by private purchase. That which a man in the defendant's position ought to have suspected, he must be regarded as having suspected, as far as was necessary to put him on guard and on his inquiries. The proof may be circumstantial, and an inference is the irresponsibility of the vendor or vendors. Knowledge may be deduced from conduct and behaviour, and the responsibility of the person or persons from whom the horse or horses was or were received."

The record discloses that counsel for the defendant objected to the instruction on several grounds, and as a result the wording was changed, although the changes did not satisfy counsel, and the objections were allowed to stand. This instruction was manifestly based upon the provisions of § 1232, page 1549, of volume 2 of Wharton's Criminal Law (12th Ed.). The full text of that section is as follows: "Whether the defendant knew that the goods were stolen is to be determined by all the facts of the case. It is not necessary that he should have heard the facts from eye-witnesses. He is required to use the circumspection usual with persons taking goods by private purchase; and this is eminently the case with dealers buying at greatly depreciated rates. That which a man in the defendant's position ought to have suspected, he must be regarded as having suspected, as far as was necessary to put him on his guard and on his inquiries. But it has been said that, to justify a conviction in the case of goods found, it is not sufficient to show that the prisoner had a general knowledge of the circumstances under which the goods were taken, unless the jury is also satisfied that he knew that the circumstances were such as constituted a larceny. The proof in any case is to be inferential; and among the inferences prominent are inadequacy of price, irresponsibility of vendor or depositor, and secrecy of transaction."

It will be observed that the section deals with abstract principles of law and evidence, and that it was sought to change the instruction as given so as to make it apply concretely to the instant case. In so doing, the language of the latter part of the section was substantially changed, and important qualifying provisions omitted. The judge evidently doubted the wisdom of giving to the jury a rather involved and technical statement of abstract law. In this we agree with him. However, the trouble comes from the fact that the changes made, in an endeavor to adapt the principle to the facts in this case, render the instruction unintelligible and misleading.

The text says: "The proof in any case is to be inferential; and among the inferences prominent are inadequacy of price, irresponsibility of vendor or depositor, and secrecy of transaction." For the foregoing there was inserted in the instruction the following: "The proof may be circumstantial and an inference is the irresponsibility of the vendor or vendors. Knowledge may be deduced from conduct and behaviour, and the responsibility of the person or persons from whom the horse or horses was or were received."

Defendant argues that the instruction told the jury, in effect, that if the people from whom defendant bought horses were irresponsible, that was a circumstance from which the jury could infer guilty knowledge, that is, knowledge of the fact that horses sold by them were in fact stolen, and that having so inferred, an inference of guilt might also be inferred, and that without other proof of knowledge on the part of the defendant that the vendors of such horses were irresponsible. To put it in another way, defendant in his objection asserted that the instruction gave warrant to the jury to convict him if they found that some of the vendors of the horses were irresponsible, regardless of whether defendant knew or should have known of such irresponsibility; that the jury could convict him on the bad reputation or irresponsibility of third...