State v. Mounts
| Decision Date | 29 November 1938 |
| Docket Number | 8770. |
| Citation | 200 S.E. 53,120 W.Va. 661 |
| Parties | STATE v. MOUNTS. |
| Court | West Virginia Supreme Court |
Submitted October 25, 1938.
Syllabus by the Court.
Proof that the accused received stolen property, with actual knowledge, or under such circumstances as would cause a man of ordinary intelligence to believe that it had been stolen is necessary to justify a conviction under a charge of having bought and received stolen goods knowing, or having reason to believe, them to have been stolen. To justify a conviction the evidence must establish every element of the offense charged.
Error to Circuit Court, Cabell County.
Grover Mounts was convicted of buying stolen property, and he brings error.
Judgment reversed, verdict set aside, and new trial awarded.
Thomas West and John G. Hudson, both of Huntington for plaintiff in error.
Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.
An indictment, returned in the common pleas court of Cabell County, against Grover Mounts, charged him, in the first count, with unlawfully and feloniously buying and receiving a certain lot of cigarettes, valued at $40, of the goods and chattels of one Hatfield Brubeck, etc., "well knowing and having reason to believe the said goods and chattels to have been unlawfully stolen, taken and carried away"; and, in the second, with the larceny thereof. To a judgment of the circuit court declining a review of the judgment of the common pleas court based upon a jury verdict finding him guilty of petit larceny, Mounts prosecutes error to this Court.
It appears that the "Varsity", a tea room in the City of Huntington, was burglarized, during the early morning, February 20, 1937, and, according to Hatfield Brubeck, its proprietor, approximately $10 in money, and twenty to twenty-two cartons of cigarettes, of different brands, valued at $1.50 per carton, retail, taken.
Haig Terry, who, a few hours prior to being called as a witness against defendant, had been sentenced on a plea of guilty to a charge of breaking and entering Brubeck's place, on the date aforesaid, testified, in effect, that he broke into the "Varsity" about two o'clock A. M., and took therefrom about $10 in money, and six cartons (five unopened) and five flat fifty packets of cigarettes; that about ten o'clock A. M., on the same day, he, in company with one Cramer Burks, carried the stolen cigarettes in a basket to an apartment building, 414 Eighteenth Street, and asked for Mr. Mounts, to whom he sold the lot (less two of the flat fifty packets) for $5.15, at the rate of seventy-five cents per carton; that prior to the purchase Mounts asked where witness got the cigarettes, to which the latter replied that he had purchased them on credit, and wanted to convert them into money; that a month prior witness had sold defendant four cartons for $2.50; and that shortly after the alleged disposition of the Brubeck cigarettes, he had sold defendant a ring for $1.50, and put up a pen and pencil set on a loan of fifty cents. This witness further stated that an indictment had been returned against him at the October 1936 term, and a number more at the June 1937 term, of the common pleas court of Cabell County, charging him with breaking and entering; and that he had never been in trouble until shortly before the first mentioned indictment. In answer to a general question, "Do you recall seeing anything in the newspapers about you and your breaking-and-enterings?" Terry answered, "Yes, sir." The foregoing testimony, in so far as it relates to the alleged sale of the Brubeck cigarettes, is supported by Burks, who stated, however, that he (Burks) had no knowledge, at the time of the sale, where the cigarettes came from.
Following Terry's arrest, which occurred within a week or two after the burglary, Whitten and Newman, city detectives, armed with a search warrant, made a search of the premises at 414 Eighteenth Street, but found no cigarettes. They testified that they found a pen and pencil set, and that defendant admitted having purchased the same from Terry. And Whitten testified that defendant later admitted to him the purchase of something like five dollars worth of cigarettes from Terry.
Defendant denied any knowledge of the pen and pencil set, although he stated that he gave Terry $1.50 for the ring, heretofore mentioned, after taking it to a jeweler who offered to pay a dollar for it. He denied having purchased cigarettes in the quantities and under the circumstances detailed by witnesses for the state, and that he ever lived at 414 Eighteenth Street. He also denied the alleged admissions attributed to him by the officers. He testified, however, that on one occasion in February, 1937, he purchased two cartons of damaged cigarettes from Terry for $1.85, this purchase being made while he (defendant) was temporarily engaged at 414 Eighteenth Street in cleaning out mud deposits left by the flood; that Terry informed him that a groceryman had given him the cigarettes for cleaning out a storeroom, and that he (Terry) wanted to turn them into money. Defendant further testified that he did not know that any of the articles purchased or pawned had been stolen. He is supported by other witnesses regarding the purchase of the two damaged cartons, and that he lived in another part of the city.
According to the evidence, Mounts had known Terry's father for fifteen years; had worked under him at a rail mill. He states he saw Haig Terry...
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