State v. Moxley
| Decision Date | 15 June 1910 |
| Citation | 110 P. 83,41 Mont. 402 |
| Parties | STATE v. MOXLEY. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Michael Donlan Judge.
Edward Moxley was convicted of receiving stolen property, and he appeals. Reversed and new trial ordered.
Rosier & Lindsay, for appellant.
Albert J. Galen, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.
The defendant, charged by information with the crime of receiving for his own gain stolen property, knowing the same to have been stolen, was found guilty and sentenced for a term of six months in the county jail. He has appealed from the judgment.
The charging part of the information is the following: "That at the county of Silver Bow, state of Montana, on or about the 2d day of July, A. D. 1909, and before the filing of this information, the said defendant, Edward Moxley, did willfully, and unlawfully, and feloniously, and for his own gain, and to prevent the owners from again possessing their own property, buy certain carpenter tools (a more particular description of which said carpenter tools is to the county attorney aforesaid unknown), of the value of two hundred and seventy-five ($275) dollars, of the personal property of one E. G. Johnson, Charles Johnson, and C. M. Rude, which had been previously stolen, and the said defendant, Edward Moxley, then and there well knowing the same to have been feloniously stolen," etc. The principal contention made in defendant's behalf is that the evidence is insufficient to justify the verdict.
The evidence introduced on behalf of the state may be summarized as follows: On July 2, 1909, E. G. Johnson, Charles Johnson and C. M. Rude were employed as carpenters in one of the school buildings in the city of Butte. When they quit work for the day they left their tools, consisting of planes hammers, saws, levels, chisels, etc., together in a chest or box. On their return on the following morning to resume work, the chest and tools were gone. Some of the tools belonging to E. G. Johnson were stamped with his name. About two weeks afterwards Johnson found on exhibition in a showcase in a second-hand store, owned by one Neyman, a pair of pliers which he identified as his. He thereupon, aided by an officer armed with a search warrant, searched the place and among a great variety of other similar articles found most of his tools. The name had been erased from them. The erasures were apparent. He also found a square belonging to Rude, and two handsaws belonging to Charles Johnson. These articles were all identified by the respective owners as among the lot of tools left by them together in the school building, and were exhibited to the jury. On the morning of July 3d the defendant went to Neyman's place and, finding Neyman's son in charge, told him that he had some tools to sell. Young Neyman told him that he would be down to his house on the next morning to examine them. The store was to be closed the next day because it was Sunday. Neyman went to the place according to agreement, and after some conversation bought the lot of tools for $7.50 and took them to the store. Since July 4th, a legal holiday, fell on Sunday, the store was kept closed on Monday, July 5th, also. Early in the morning of the next day the defendant came to the store and there received payment from Neyman, after signing a bill of sale. Dealers in second-hand goods are required by an ordinance of the city to take bills of sale for goods purchased by them, and to furnish copies of them, at the close of the day's business, to the city authorities. The defendant signed the name "John Johnson," designating his residence as "20 West Silver street," whereas he resided at 314 East Mercury street. When Neyman went to defendant's house to purchase the tools, they were all together in a box or chest, which, from the description given by him, was the same one in which they had been left in the school building on July 2d. Neyman did not notice a name upon any of the tools. He did not include the box or chest in his purchase. The evidence as to the value of the tools, though not entirely satisfactory, is sufficiently substantial to justify the conclusion that they were all together worth at least $35. None of the witnesses for the state had any knowledge as to how or by whom the tools were taken from the school building, or how they came into the possession of the defendant.
The defendant was examined as a witness in his own behalf. He stated that he had received the tools on June 28th from a man by the name of Thornton, who lived next door to him on Mercury street; that Thornton was employed doing odd jobs in the neighborhood, and on that particular day was engaged at some carpenter repair work for a man by the name of Kipp, across the street; that Thornton had tools of his own; that after Thornton had finished work he came to him and asked for and obtained from him a loan of five dollars, leaving the tools as security; that the tools were then in the chest or box, but, knowing that Thornton had tools worth from ten to fifteen dollars, he did not examine them; that he had previously lent Thornton money on the same tools; that he was sure he received the tools on June 28th, because, when Thornton had finished the work for Kipp, Kipp had paid him, taking his receipt which bore that date; Kipp having shown him the receipt; that on the next day he again saw Thornton, who desired an additional loan of two dollars, which he refused; that Thornton thereupon told him he might keep the tools, inasmuch as he was going away to work in an adjoining county; that the sale was made to Neyman on July 3d; that he signed the bill of sale on July 6th as Neyman directed, both as to name and residence; that Neyman knew that he would not sign his own name, and hence the direction to do as he did. He stated further that as soon as he had signed the name to the bill of sale, Neyman complained that he was having trouble about tools, but did not say whether he referred to the tools in question or not. Being asked to explain to the jury why he had written the name "Johnson" when his own name was Moxley, he said: "I didn't want my name along there with a lot of thieves, any more than any of these gentlemen do; that is why I put it there."
It appeared from the testimony of other witnesses that Thornton did reside in the neighborhood of defendant's residence up until the day the defendant purchased the tools from him, and that he was engaged in doing odd jobs at carpenter repairing and similar work. Though Kipp was examined as a witness to establish the previous good character of the defendant, he was not asked to produce the receipt referred to by the defendant, nor was he questioned about it. At the time the defendant signed the bill of sale, Neyman was busy and did not notice how it was signed, until he came to make out his report to the city authorities of the purchases made during the day. Neyman had known defendant for some time and knew where he resided.
Section 8662, Rev. Codes, under which the information was drawn declares: "Every person who for his own gain or to prevent the owner from again possessing his own property buys or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years or in a county jail not exceeding six months." To make...
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