State v. Louis Alpert
| Decision Date | 14 October 1914 |
| Citation | 92 A. 32,88 Vt. 191 |
| Parties | STATE v. LOUIS ALPERT |
| Court | Vermont Supreme Court |
January Term, 1914.
INFORMATION for receiving stolen goods. Plea, not guilty. Trial by jury at a special term in January, 1913, Chittenden County, Taylor, J., presiding. Verdict, not guilty on the first, third and sixth counts, and guilty on the second fourth, and 13 fifth counts, and judgment thereon. The respondent excepted. The opinion states the case.
Judgment and sentence reversed, and cause remanded for a new trial.
Theodore E. Hopkins, State's Attorney, and Henry B Shaw for the State.
V. A. Bullard and Guy M. Page for the respondent.
Present: POWERS, C. J., MUNSON, WATSON, AND HASELTON, JJ., AND WATERMAN, SUP. J.
The information contains six counts charging the respondent with receiving goods in August and September, 1912, with knowledge that they had been stolen. The first count charges the receiving of a box of clothes; the second, three boxes of dress goods and umbrellas; the third, twenty boxes of Empire rubbers; the fourth, thirty boxes of Hood's rubbers; the fifth, certain perfumery; the sixth, a box of alarm clocks. The respondent was acquitted on the first, third and sixth counts, and convicted on the second, fourth, and fifth counts. The exceptions will be considered under the numbers given in the bill of exceptions.
I and II. These exceptions were taken to the admission of evidence relating solely to matters charged in the first count on which the respondent was acquitted. This being so, whether the evidence was properly admitted or otherwise is now immaterial. Commonwealth v. Meserve, 154 Mass. 64, 27 N.E. 997; Commonwealth v. Billings, 167 Mass. 283, 45 N.E. 910.
III. The State called as a witness one Poirrier who testified to a conversation with the respondent after the witness returned from serving a sentence of imprisonment for burglary, shortly before the witness claimed the goods in question were sold to the respondent. The witness testified that respondent told him on that occasion that he, respondent, liked to do business with him (witness) because he would not squeal, because he did not squeal before. Witness further testified that he knew to what action respondent referred by that remark. The witness was then asked the question, "What was the matter to which he referred by that remark?" The question was objected to as incompetent and immaterial. The witness answered: "To twenty bales of woolen cloth taken from the American Woolen Mill Company from a box car at Essex Junction, valued at $ 1,000." The State's evidence tended to show that at the time of the conversation referred to, the respondent was acquainted with the witness and knew that he had served two terms of imprisonment for the crime of burglary, one for the term of eighteen months and one for the term of two and one-half years, and that he was recently out of prison and back home. There was no error in the ruling. The occasion to which the respondent had reference, being shown, the evidence tended to show not only that the respondent then knew that the witness for a long time had been, and was, a thief, but also that they were on such friendly terms that the respondent expressed his pleasure in doing business with the witness because he "didn't squeal before," meaning a time when the witness was convicted of stealing goods from a freight car. This evidence had a bearing on the question of the respondent's guilty knowledge on the occasions later when he purchased goods as charged in the information, with which he knew the witness to be connected. It is not necessary that guilty knowledge be shown by direct evidence. It may be shown by the circumstances, if they were such as to satisfy the receiver's mind that the goods were stolen, as if he purchased them "at suspicious and unreasonable times, or from persons who in the ordinary course of things could not fairly be considered as the unsuspected owners of property of the particular description, or had secreted or endeavored to secrete it, or attempted to explain the manner of acquisition by falsehood or prevarication." Will's Cir. Ev. 95.
IV. It is sufficient to say concerning this exception, that the question asked was not within cross-examination, and could be excluded in the discretion of the court.
V. Witness Howe had testified to one occasion when one Hooper, Poirrier, Fargo, and himself entered a freight car in September, 1912, and stole some boxes of dress goods, umbrellas, and alarm clocks, which they testified were sold to the respondent for forty dollars, the money received being divided equally among the four thieves. Poirrier testified to the stealing of three boxes of dress goods and umbrellas by the persons named and the sale of them to respondent. Fargo testified that in September he, Hooper, Howe, and Poirrier stole two crates, in one of which he saw some dark checkered dress goods, some underskirts, and dark coats, in another he saw baking powder, and "guessed that there was tobacco and cigarettes in it too"; but did not remember seeing any umbrellas. He was asked by the State's attorney, whether he received any money as the proceeds of that excursion, and subject to objection as immaterial, and that it did not appear that any of the things testified to were articles received by the respondent, answered in the affirmative. The jury might well find that the evidence of these witnesses related to one and the same occasion. This being so it cannot be said that the sum received was immaterial. Evidence that the goods mentioned in the information were sold to the respondent under value bears upon the question of guilty knowledge. Will's Cir. Ev. 72.
VI. One Max Glasston, a witness called by the State, testified that he ordered from H. B. Claflin & Company and from S. Stanchfield & Company, goods of the general description of part of those covered by the second count. For the purpose of connecting the respondent with the Stanchfield order, witness was asked in direct examination whether he instructed Stanchfield to turn the package over to Claflin & Company, to be sent in the box with their consignment. Objection was made on the ground that it was immaterial and did not tend to show that the goods were put into the box. The question was permitted, and the witness answered in the affirmative. The witness being shown one of a number of sateen skirts which Poirrier testified were stolen from a freight car of the Rutland Railroad and sold with goods consigned to Max Glasston, to the respondent at his store, 19 Church Street, and which were found by the officers at that place, testified that he ordered from Stanchfield & Company three dozen sateen skirts, and that the article shown him was a sateen skirt; that he never received any of those skirts, nor any of the goods ordered from Claflin & Company, except two bales of cotton batting. The freight-checking clerk of the Rutland Railroad at Burlington testified that he checked out only two bales of cotton batting, and that two cases of dry goods were missing, according to the paper purporting to be a waybill not further identified. There was no evidence as to the Stanchfield shipment. This exception must be sustained. The fact that the witness instructed Stanchfield & Company to turn the package over to Claflin & Company to be sent in the box with that company's consignment, was not evidence that in fact the package was so turned over, nor that it was so sent.
VII. Against the objection of respondent, the State was allowed to put in evidence by one Moody, the freight agent of the Rutland Railroad at Burlington, an experiment with two car seals taken from the car January 29, 1913, by the witness. The court found that the conditions of the experiment were substantially the same as the conditions of the seals in question, it having been shown that the seals were of the same kind of lead and wire as were used in September, that they were impressed with the Rutland seal number 226; that the seal leads had been pulled off the wires with a stick by witness as an experiment. The seal and wires were given to the jury to determine whether the wires could be put back and made to appear intact by a blank press. The ground of the objection was that there was no evidence that the conditions were substantially the same. An examination of the transcript (which is made controlling) shows evidence amply supporting the finding in this respect, hence the exception is without avail.
VIII. The witness McGowan testified to being with Howe when a car was broken into and boxes taken out and put in the bushes that they had been drinking; that the witness remained all night in the bushes where the boxes were carried, and early the next morning Howe, Fargo, and Vradenburgh were there with a team and were loading the boxes onto the truck when the witness woke up or came to; that the witness saw them load the boxes, and he rode on the truck to the shed mentioned below and saw them unload the boxes there. McGowan testified that he could go to the place of these sheds, that they were on the right hand side of Church Street, going up, that the store was facing on the street and the sheds were right back of the store. The State was allowed to show by one Murphy, a deputy sheriff, subject to respondent's objection as immaterial and incompetent, that after McGowan left the witness stand he went with the witness up Church Street to the respondent's store on the left hand side of the street and entered the alley-way beside it where there are sheds and places to hitch horses. In view of Mc Gowan's testimony, this testimony given by Murphy was both material and competent. In this connection it should be stated that McGowan, on being called to the...
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