State v. Marcovitz

• Decision Date: 20 May 1933
• Parties: STATE v. MARCOVITZ.
• Court: North Dakota Supreme Court

63 N.D. 458

248 N.W. 481

STATE

v.MARCOVITZ.

Supreme Court of North Dakota.

Cr. 99.

April 13, 1933.

Rehearing Denied May 20, 1933.

Syllabus by the Court.

1. An information, charging a person with the crime of receiving stolen property as defined in section 9926 of the Compiled Laws, is sufficiently specific when it contains a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.

2. Such an information is not vulnerable to a demurrer which specifies as its ground that the information does not constitute a public offense.

3. While a defendant in a criminal action cannot be convicted upon the testimony of an accomplice, unless the accomplice be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, yet this rule does not require corroboration of every material fact testified to by the accomplice; nor must such corroboration be such as, standing alone, is sufficient to support a verdict of guilty. Consequently it was not error for the court to refuse to instruct the jury that corroboration of an accomplice must extend to every material element of the crime charged.

4. The credibility of an accomplice is for the jury to determine, and, if there be corroborative testimony tending to connect the defendant with the commission of the crime, the jury may infer therefrom that the accomplice spoke the truth in regard to other matters, and treat him as any other witness.

5. Statements made by the defendant regarding the property involved, his connection with the transaction, and his conversations with the accomplices, together with other circumstances of the case which tend to show that, when he bought the property, he had knowledge that the property had been stolen, may be considered by the jury as corroborative of the testimony of the accomplice.

6. Where a defendant is prosecuted for receiving stolen property, knowing it to be stolen, the fact there may be some testimony tending to show that, before the property was stolen, he knew of the contemplated crime of larceny, and was willing to profit therefrom by buying and reselling the stolen property, does not require the state to prosecute the defendant for larceny nor prevent the state from prosecuting him for receiving stolen property.

7. Where the court, in instructing the jury, charged explicitly that, before the defendant could be convicted, the state must show beyond a reasonable doubt that, when the defendant received and purchased the property, he knew it to be stolen property, it is not error for the court to inform the jury that:

“Guilty knowledge is made out and sufficiently proven to warrant conviction in that respect by proof that the defendant received the property under such circumstances as would reasonably satisfy and convince a man of defendant's age, intelligence and business ability that the turkeys were stolen.

You are instructed that if you find that all the facts and circumstances surrounding the buying and receiving of the turkeys by the defendant, if you find he received them, were such as would reasonably satisfy and convince a man of defendant's age, intelligence and business ability, that the turkeys were stolen, then you may in your discretion find the defendant had knowledge that said property was stolen property.”

-as such charge does not lay down an arbitrary rule, but merely informs the jury it has the right to consider the age, intelligence, and business ability of persons like the defendant, and, if the facts of this case, known to the defendant, were of such nature as to furnish such person knowledge of the larceny, they may consider whether the defendant, being of that same class, had guilty knowledge as a matter of fact.

8. In a prosecution for receiving stolen property, it is not error for the court to charge that “the finding of stolen property in the possession of another shortly after such property has been stolen raises the presumption of guilt as against the person in whose possession the same is found,” when the court states that this is a rebuttable presumption, not sufficient to warrant a conviction, but merely a circumstance to be considered by the jury in its bearing upon his guilt or innocence. Recent and unexplained possession of stolen property is an evidential fact which the jury may rightfully take into consideration, drawing such inferences therefrom as are in harmony with the evidence in the case.

9. It is not error for the court to refuse to give a requested instruction when the matter is fully and fairly covered by the instructions already given.

10. Certain specifications of error, alleged to have occurred in the reception and exclusion of evidence, are examined, and it is held nothing therein is shown to be reversible in character.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Ben Marcovitz was convicted of receiving stolen property, and he appeals.

Affirmed.William Langer and Robert Birdzell, both of Bismarck, and J. J. Weeks, of Bottineau, for appellant.

A. J. Gronna, Atty. Gen., John F. Sullivan, Sp. Asst. Atty. Gen., and George S. Register, State's Atty., of Bismarck, for the State.

BURR, Judge.

The defendant was convicted of the crime of receiving stolen property, and was duly sentenced, after his motion in arrest of judgment had been denied.

The defendant moved for a new trial upon the following grounds:

“That the Court misdirected the jury in matters of law and erred in the decision of questions of law arising during the course of the trial, as is more fully set forth under the specifications of error hereto attached.

That the verdict as rendered by the jury is contrary to law and is clearly against the evidence as is more fully set forth in the specifications of error hereto attached.

That said motion will be based upon the minutes of the Court, the testimony introduced at the trial and all records and files in this action; the statement of the case settled and allowed by the Court, the instructions of the jury and the annexed specifications of error.”

This motion was denied, and defendant appeals to this court from the order denying the motion for a new trial.

There are twenty-six specifications of error, which, appellant says, present six issues. We deal with these in the order presented.

[1][2] Appellant says “the information does not state facts sufficient to constitute a public offense, and is fatally defective in other respects.” The demurrer interposed says also “that more than one offense is charged therein.”

Section 9926 of the Code (Comp. Laws 1913) says: “Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, and with the intent to deprive the owner thereof,” is guilty of receiving stolen property. Much argument is devoted to the form of the information, the arrangement of the clauses, and the punctuation. The information charges that the “defendant did then and there wilfully, unlawfully and feloniously buy and receive, upon a consideration, personal property, namely: dressed turkeys aggregating approximately forty-three hundred pounds in weight, of value exceeding the sum of four hundred dollars, which said property had been feloniously stolen from another in said Burleigh County, North Dakota, prior thereto, knowing the same to have been stolen, and with intent to deprive the owner thereof,” etc.

The comment of this court in State v. Ross, 46 N. D. 167, 169, 179 N. W. 993, 994, is applicable here. “Although the phrases might have been differently arranged and placed perhaps in closer apposition to the words which some of them modify, nevertheless it is clear upon reading the entire information,” that the defendant is charged with receiving property that had been stolen from another, knowing it to be stolen when he received it, and receiving it with intent to deprive the owner thereof. Our statutes require the information to contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended,” and provides that the information is sufficient if so charged. Sections 10685 and 10693, Comp. Laws. The information in this case is sufficiently similar to the information in the case of State v. Ross, supra, to be governed by the rules set forth therein. The demurrer was properly overruled.

[3][4][5][6] The court charged the jury that four of the witnesses were accomplices, and appellant says that the testimony of these accomplices is not corroborated sufficiently so as to sustain the verdict.

The main testimony for the state is given by four witnesses whom the trial court, in its charge to the jury, denominated accomplices.

Section 10841 of the Compiled Laws says: “A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.”

The testimony is too lengthy to set forth a summary. The defendant made no serious attempt to show that he had not received stolen property. His defense was directed to the point that at the time he got it he did not know it was stolen. The state was required to prove his guilty knowledge. Three of the state witnesses-Brown, Caya, and Douglas-were confessedly guilty of larceny in the taking of the turkeys from the car. The defendant is not charged with this larceny, or with being connected with the larceny. The state's witness Ditch, without question, was an accomplice, and, if the others were accomplices also, one accomplice cannot corroborate another.

But the corroboration of...