State v. Long

• Decision Date: 03 June 1966
• Citation: 415 P.2d 171,243 Or. 561
• Parties: STATE of Oregon, Respondent, v. Wendell Floyd LONG and Edward Dinon Romero, on behalf of Wendell Floyd Long, Appellant.
• Court: Oregon Supreme Court

Page 171

415 P.2d 171

243 Or. 561

STATE of Oregon, Respondent, v. Wendell Floyd LONG and Edward Dinon Romero, on behalf of

Wendell Floyd Long, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 6, 1966.

Decided June 3, 1966.

Donald R. Crane, Klamath Falls, for appellant. On the brief were David R. Vandenberg, Jr., and Riney J. Seeger, Klamath Falls.

Sam A. McKeen, Dist. Atty., Klamath Falls, for respondent. With him on the brief was Harry D. Lewis, Deputy Dist. Atty., Klamath Falls.

Before McALLISTER, C.J., and PERRY, DENECKE, HOLMAN and SCHWAB, JJ.

McALLISTER, Chief Justice.

The defendant, Wendell Floyd Long, and one Edward Romero were jointly indicted in Klamath county of the crime of concealing stolen property. Defendant was tried separately, found guilty and sentenced to a two-year term in the penitentiary, from which he appeals.

Defendant assigns as error the denial of his motion for a judgment of acquittal. The motion was made after the state had rested and the defendant also had rested without presenting any evidence in his defense. This assignment challenges the sufficiency of the evidence to support the verdict, and requires a review of the evidence in the light most favorable to the state. State v. Fichter, 226 Or. 526, 527, 360 P.2d 278 (1961); State v. Rosser, 162 Or. 293, 340, 341, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295 (1939).

The defendant Long was apprehended by city police officers at 2:34 a.m., on April 8, 1965, on Main Street in Klamath Falls. Long had been riding in the front seat of an automobile driven by his co-defendant, Romero. The automobile belonged to Jeannette Mairs, from whom it had been borrowed by Romero. Long had been under observation by the officers only for about four minutes while they were following the automobile immediately before it was stopped. At the scene one of the officers asked Long for some identification, and Long handed him, without comment, a 'liquor card' bearing the name Joe Skaggs. The officers, with the permission of Romero, searched the vehicle and found partially concealed under the front seat a sledge hammer and a crowbar. The charge against defendant of concealing stolen property is based on his presence in the car containing the sledge and crowbar.

The state introduced convincing evidence that the sledge and crowbar had been stolen in Klamath Falls on April 3, 1965 from one Lawrence, and that both tools had been used in an attempt to break into the Lucas Furniture Store in Klamath Falls about an hour before defendant was apprehended, and that at about the same time the Medo-Bel Dairy had also been broken into, although there was no evidence that these tools had been used at the breaking of the dairy.

We need not consider whether Long's presence in the automobile, which he did not own and was not operating, was sufficient evidence to support a finding that he was in possession of the tools therein. For cases bearing on that question see State v. Miller, 238 Or. 411, 395 P.2d 159 (1964); Commonwealth v. Whitman, 199 Pa.Super. 631, 186 A.2d 632 (1963).

Assuming sufficient evidence of possession, the crucial question is whether Long knew the tools were stolen. The statute ORS 165.045 proscribes the concealing of stolen property: 'knowing or having good reason to believe that it was stolen.' As this court said in State v. Stacey, 153 Or. 449, 455, 56 P.2d 1152 (1936), 'guilty knowledge is the gravamen or substance of the offense.' There is no evidence in this record that either Long or Romero knew or had reason to believe that the sledge and crowbar were stolen. The state offered no such evidence, but relied solely on the proof that the tools had been stolen and the further proof that the tools had been used in the attempted burglary of the Lucas Furniture Store.

In prosecutions for larceny it is the general rule that the unexplained possession of recently stolen goods raises an inference that the goods were stolen by the possessor. State of Oregon v. Black, 193 Or. 295, 314, 236 P.2d 326 (1951); State v. Williams, 102 Or. 305, 312, 202 P. 428 (1921), and earlier cases there cited. But even in prosecutions for larceny, an inference of guilt is warranted only if the possession was personal and involved 'a distinct and conscious assertion of possession by the accused.' State v. Moss, 95 Or. 616, 626 et seq., 182 P. 149, 188 P. 702 (1920); State v. Williams, supra, 102 Or. at 312, 202 P. 428.

In prosecutions for receiving or concealing stolen goods, however, the weight of authority, and we think the better view, holds that mere possession of recently stolen goods is not sufficient to prove guilty knowledge, in the absence of other proof that the accused knew or had reason to know that the goods were stolen. People v. Brooks, 340 Ill. 74, 172 N.E. 29 (1930); People v. Lardner, 296 Ill. 190, 129 N.E. 697 (1920); Bowers v. State, 196 Ind. 4, 146 N.E. 818 (1925); State v. Rock, 162 La. 299, 110 So. 482 (1926); People v. Mullis, 200 Mich. 505, 166 N.W. 859 (1918); Durant v. People, 13 Mich. 351 (1865); Crowell v. State, 195 Miss. 427, 15 So.2d 508 (1943); State v. Day, 339 Mo. 74, 95 S.W.2d 1183 (1936); State v. Richmond, 186 Mo. 71, 84 S.W. 880 (1904); State v. Neill, 244 N.C. 252, 93 S.E.2d 155 (1956); Mullins v. State, 15 Okl.Cr....