State v. Lewis

• Citation: 188 S.E. 473
• Court: Supreme Court of West Virginia
• Decision Date: 16 December 1936
• Parties: STATE. v. LEWIS.

188 S.E. 473

STATE.

v.LEWIS.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1936.

Concurring opinion.

For majority opinion, see 187 S.E. 315.

See, also, 187 S.E. 728.

KENNA, Judge (concurring).

The two dissenting opinions filed herein, particularly that filed by Judge HATCHER which relies upon a number of authorities as sustaining its conclusion, make it desirable that there should be some further elucidation of the position taken by the majority of the court, as I understand that position.

Under the old statute, referred to in the majority opinion, it was made an offense to receive stolen goods knowing them to have been stolen. There is no dispute but that under statutes of this sort the overwhelming weight of authority is to the effect that belief is tantamount to knowledge. There is nothing contained in the majority opinion that controverts this proposition. It is not now open to doubt, nor do I think it necessary to discuss the reason behind it. Neither is it open to doubt that the knowledge, which is made an element of the offense, may be proven by circumstantial evidence, and the practical reason that underlies that position is perfectly apparent. The court, I think, is not divided upon either of these propositions.

At a later time, however, the Legislature saw fit to enlarge the substantive offense by providing that the offense should consist in receiving stolen goods knowing them to have been stolen or with reason to believe that they were stolen. This court cannot overlook the fact that the legislative change in the definition of this substantive offense was intended to have some practical effect. That practical effect seems to me to be obvious. Whereas, under the old statute, the actual knowledge could be proven by circumstantial evidence, the new statute goes a step further. Under it, the conviction may be had upon circumstantial proof of actual knowledge, and, furthermore, a conviction may be had upon circumstantial proof of reason to believe that the goods were stolen when received. In other words, in enlarging the scope of the substantive offense, the Legis lature has also enlarged the scope of the circumstantial proof required for a conviction. To illustrate: In this case, under the instruction of the court, the jury could have convicted either upon circumstantial proof of actual knowledge or upon circumstantial proof that the accused had reason to believe that the goods were stolen. Under the indictment, he could only have been convicted upon circumstantial proof of actual knowledge.

This distinction is not new. It has been drawn in several decided cases, and I deferentially suggest that an examination of some of the very cases used in the dissenting opinion illustrate its soundness. I quote at length from the case of Meath v. State, 174 Wis. 80, 182 N.W. 334, 335, cited by Judge HATCHER:

"By the express language of this statute, an essential element of the offense is that the defendant shall, at the time of his receiving or dealing with the stolen property, know that such property has been stolen. It is as essential that the jury shall, beyond a reasonable doubt, find that he had such knowledge at the time of his transaction with the property as they must that the property was theretofore stolen. Such guilty knowledge, or its equivalent, guilty belief, may be proven by circumstantial evidence; but it is not sufficient that such circumstantial evidence convinces the jury beyond a reasonable doubt that the defendant ought to have known that the property was stolen; it must go a substantial step further and satisfy them that he did know or believe.

"The portion of the charge as quoted above, and of which the...