State v. Lewis

Decision Date20 June 1936
Docket Number8385.
PartiesSTATE v. LEWIS.
CourtWest Virginia Supreme Court

Submitted May 5, 1936.

Rehearing Denied Sept. 1, 1936.

Syllabus by the Court.

1. In a trial under an indictment for receiving stolen goods which, on the element of knowledge required by the statute for a conviction, alleges only that the accused received the goods in question "well knowing the said goods and chattels to have been unlawfully and feloniously stolen," it is reversible error to instruct the jury that they should return a verdict of guilty if they find beyond a reasonable doubt that the goods in question were stolen and that the accused received them knowing them to be stolen or having cause to believe them to be stolen property.

2. In an indictment for receiving stolen goods a description of the property stolen as "four shotguns of the value of $140.00, two watches of the value of $10.95," is good upon demurrer.

Error to Circuit Court, Kanawha County.

Carson Lewis was convicted of receiving stolen goods, and he brings error.

Reversed and remanded.

MAXWELL J., and HATCHER, P., dissenting.

Salisbury Hackney & Lopinsky, of Charleston, for plaintiff in error.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for the State.

KENNA Judge.

Carson Lewis was indicted in the intermediate court of Kanawha county for receiving stolen goods, the indictment alleging that on the ------ day of August, 1935, in that county, he received four shotguns and two watches "well knowing the said goods and chattels to have been unlawfully and feloniously stolen." To a judgment of the circuit court declining to review the judgment of the intermediate court based upon a verdict of guilty, he prosecutes this writ of error.

The principal assignment of error is based upon the language just quoted from the indictment, and the fact that the court instructed the jury that if they believed beyond a reasonable doubt that the shotguns and watches described in the evidence were stolen property and that they came into the possession of the defendant under such circumstances as that the defendant knew or had cause to believe they were stolen property, then the jury should find the defendant guilty. It will be noted that the charge in the indictment was for receiving the goods and chattels knowing them to have been stolen, whereas, the instruction is that a verdict of guilty may be returned if the jury believed beyond a reasonable doubt that the defendant had cause to believe the property to be stolen.

The reason for the confusion between the indictment and the instruction given by the court doubtless is that, whereas under section 18 of chapter 145 of the Code of 1923, the offense of receiving stolen goods was committed only when the goods were known to be stolen, under section 18 of article 3 of chapter 61 of the Code of 1931, the statute was expanded to include cases where stolen goods were received if the recipient had reason to believe they had been stolen. It cannot be doubted that the amendment effected by the Code of 1931 is a substantial change in the definition and nature of this offense. The indictment followed the old statute; the instruction of the court followed the new. The indictment is sufficient under either the old or new section, but that fact does not dispose of the question before us.

Under the old section, there is but one way that the offense may be committed, and that is receiving goods knowing them to have been stolen. Under the new section, there are two ways that the offense may be committed, first, by receiving goods knowing them to have been stolen, and, second, receiving goods with reason to believe that they were stolen. The indictment before us was restricted to the one offense; the instructions of the court included both. This statute is to be strictly construed. State v. Smith, 98 W.Va. 185, 126 S.E. 703. We are of the opinion that, since the accused could not be convicted upon a state of facts not charged in the indictment, it was reversible error for the trial court to instruct the jury that he could be. An irregularity in this instruction is the fact that it uses the words "knew, or had cause to believe," whereas, under the statute, the words are "reason to believe." There is no assignment of error for this reason, but we do not wish to be understood as now approving a form of instruction that makes this departure from the language of the statute.

We are of the opinion that the assignment of error based upon the insufficiency of the description contained in the indictment of the articles alleged to have been stolen is without merit. They were described as four shotguns and two watches, and the ownership and value of each class of goods was alleged. In State v. Bailey, 63 W.Va. 668, 60 S.E. 785, the rule is laid down that in a larceny indictment it is not necessary to describe the goods stolen by reference to any mark or identification by which they can be distinguished from other goods of the same or similar kind. In State v Blair, 63 W.Va. 635, 60 S.E. 795, an indictment was approved which described the goods stolen as "one man's saddle," and "one horse." The discussion appearing in the opinion of this case at page 636 of 63 W.Va. 60 S.E. 795, points out a number of descriptions that have been...

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