State v. Lisena.

• Decision Date: 25 February 1943
• Docket Number: No. 4.,4.
• Citation: 30 A.2d 593,129 N.J.L. 569
• Parties: STATE v. LISENA.
• Court: New Jersey Supreme Court

129 N.J.L. 569

30 A.2d 593

STATE

v.LISENA.

No. 4.

Supreme Court of New Jersey.

Feb. 25, 1943.

Error to Essex Quarter Sessions.

Michael A. Lisena was convicted of receiving stolen goods, and he brings error.

Judgment affirmed.

October term, 1942, before BROGAN, C. J., and PARKER and PORTER, JJ.

Bozza & Bozza, of Newark, for plaintiffin-error.

William A. Wachenfeld, Prosecutor of Pleas, and C. William Caruso, Asst. Prosecutor, both of Newark, for defendant-in-error.

PORTER, Justice.

The writ of error brings up for review the conviction of plaintiff-in-error (hereinafter called Lisena) under an indictment charging him with receiving stolen goods. The indictment charges that at Newark on May 29, 1940 he ‘unlawfully did receive and have one lot drugs, in all of the value of two hundred dollars, of the goods and chattels of the New Jersey Wholesale Drug Company, a corporation, the said goods and chattels having theretofore been stolen, taken and carried away from the said New Jersey Wholesale Drug Company * * *’.

It appears that Lisena was a druggist and had conducted a retail drug store in Newark for many years and that he purchased goods from the New Jersey Wholesale Drug Company, wholesale druggists in Newark. That firm had in its employ one Pennington as a stock clerk whose duty it was to fill orders received from retail druggists. Pennington testified that from March 1939 until May 29, 1940 at the suggestion of Lisena he had secretly filled orders for goods received from him from the stock of his employer and had been paid by Lisena for said stolen goods sums considerably below the wholesale price which sums he kept for himself. On May 29, 1940, at about 7:30 in the morning, Pennington delivered goods which Lisena had ordered from him to his son who came for the goods, Pennington having arranged by telephone for the delivery to Lisena. The General-Manager and the Treasurer of the drug company were watching their premises on the morning in question and saw Pennington deliver a carton to the driver of an automobile in front of the place of business. The police were notified and the officers went to the home of Lisena between 8 and 9 o'clock of the same morning and found Lisena at home and in bed. This automobile was in front of his home and the carton was found in it. It contained the stolen goods which Pennington had put in it, as he testified. Lisena made a written statement to the police on that date which was in evidence, in which he admitted having received the goods on that day, as was testified to by Pennington, and also admitted the course of conduct which had been described by Pennington. Lisena did not deny the truth of that statement nor indeed did he take the stand at all in his defence.

Appellant argues his assignments of error under four points which will be considered in the order presented.

First, it is argued that the statute denouncing the receiving of stolen goods, N.J.S.A. 2:164-1, is unconstitutional because: (a) it deprives the defendant of the right to interpose any defense other than gift or purchase; (b) it is arbitrary and unreasonable and it deprives the defendant of due process; (c) it creates a presumption of guilt and thereby shifts the burden upon the defendant to prove his innocence; (d) it takes from the court its prerogative to pass upon the legality of evidence wherein it provides that possession of stolen property is prima facie evidence of guilty knowledge; and (e) it invades the function of the jury to determine the fact of possession.

The crime of receiving stolen goods under the Crimes Act of 1898 required proof to establish guilt of three things; that the goods were stolen, that the accused received them and that at the time he received them he knew that they were stolen. State v. Werner 1 N.J.Misc. 180. The present statute eliminates the necessity of showing guilty knowledge by direct proof and in its place provides that if the accused is shown to have received the goods within a year from the date of stealing such possession shall be deemed sufficient evidence to convict unless the accused shows to the satisfaction of the jury that the goods were a gift and not received from a minor under the age of 16, that he paid the fair value for the goods, or that he believed that the seller was a regular and established dealer in goods or that before or when he received the goods he reported same to the police authorities. We do not think that this statute eliminates the necessity of proof of guilty knowledge. Its purpose is to dispense with affirmative proof of such knowledge and to substitute proof of recent possession from which guilty knowledge may be inferred and this is of course a fact issue for the jury. Lisena was not deprived of the right to explain his possession. He chose not to explain. He did not take the witness stand. In State v. Giordano 121 N.J.L. 469, at page 471, 3 A.2d 290, at page 291, this court said, ‘The statute under review, if regarded as doing no more than indicating the manner in which a presumption of guilt from proof of possession of stolen property within one year from the date of theft, may be rebutted, deprives the citizen of no constitutional guaranties but merely enacts a rule of evidence well within the general power of government.’

The statute does not shift the burden of proof nor deprive the accused of due process nor is it arbitrary and unreasonable. State v. Giordano supra; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101. In the Casey case Mr. Justice Holmes speaking for the Supreme Court said [276 U.S. 413, 48 S.Ct. 374, 72 L.Ed. 632], ‘The statute here talks of prima facie evidence, but it means only that the burden shall be upon the party found in possession to explain and justify it when accused of the crime that the statute creates. 4 Wigmore, Evidence, § 2494. It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the Government. 4 Wigmore, Evidence, § 2486.’

The second point argued is that the court erred in not granting motions for the direction of an acquittal on the ground that there was no proof of actual possession by Lisena. The proofs were that the arrangement between Pennington and Lisena was that the stolen goods be delivered to an agent of Lisena which arrangement had been...