State v. Powers
| Decision Date | 17 February 1914 |
| Citation | 164 S.W. 466,255 Mo. 263 |
| Parties | THE STATE v. WILLIAM POWERS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.
Affirmed.
John A Gernez for appellant.
(1) The failure of the court in its instruction to the jury requiring the receiving to have been done with an unlawful and felonious intent was reversible error. 1 Bish. New Cr. Law sec. 567-71; 4 Black. Comm. 132; Hughes' Crim. Law, sec. 665; 1 Wharton, Crim. Law, sec. 88; State v. McAdoo, 80 Mo. 219; 1 McClain's Cr. Law, sec. 717; Rapalje on Larceny, sec. 311-316; 2 Bish. Cr. Law, sec. 1138-42; People v. Avilla, 43 Cal. 196; State v. Pelts, 3 Blackf. (Ind.) 28; People v. Johnson, 1 Park. Crim. (N.Y.) 564; People v. Miller, 25 Hun (N.Y.), 473; People v. Chatterton, 15 Abb. Prac. (N.Y.) 147; People v. Hartwell, 166 N.Y. 361; State v. Rushing, 69 N.C. 29; State v. Caveness, 78 N.C. 484; State v. Crawford, 39 S.C. 343; State v. Hurrell, 5 Humph. (Tenn.) 68; State v. Rice, 3 Heisk. (Tenn.) 215; Comm. v. Hey, 32 Gratt. (Va.) 946; State v. Sweetem, 75 Mo.App. 134. (2) The law of the cases is that when a statute makes criminal an act not malum in se or infamous, without requiring the act to be knowingly done, a criminal intent need not be proven, and contra, if the offense is malum in se, then the criminal intent must be proven. U.S. v. Leathers, 6 Sawy. 17; People v. Goodwin, 62 N.Y. 299; Comm. v. Wentworth, 118 Mass. 441; State v. Hulsett, 41 N.J.L. 552; People v. Adams, 16 Hun, 549. (3) It was error on part of the court to fail to instruct on the petit receiving of stolen goods, in view of the evidence on the part of the State of accused's admissions. State v. Dashman, 153 Mo. 454. (4) Instruction number 5, given by the court, is subject to the criticism that it does not clearly and distinctly indicate that "the proven statements or declarations of the accused" referred to were "made out of court." State v. Lewis, 248 Mo. 508; State v. Hudspeth, 150 Mo. 28; State v. Hollingworth, 156 Mo. 185.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) The intent with which stolen goods are received is not an element of the offense. State v. Cohen, 254 Mo. 437; State v. Rice, 245 Mo. 167; State v. Smith, 250 Mo. 350; State v. Sakowski, 191 Mo. 635; State v. Richmond, 186 Mo. 171. (2) Defendant's proven admissions were to the effect that out of the fruits of the larceny he received, at the time of the division of the spoils in his saloon, three twenty-dollar gold pieces from each of three of the thieves, thus constituting a single transaction, and therefore there was no petit receiving. Lorton v. State, 7 Mo. 57; State v. Morphin, 37 Mo. 373; State v. Maggard, 160 Mo. 472; State v. Mandich, 24 Nev. 341; People v. Johnson, 81 Mich. 576; State v. Congrove, 109 Iowa 66; Furnace v. State, 153 Ind. 95; Carl v. State, 125 Ala. 104. (3) Instruction numbered 5, relating to proven statements made by defendant subsequent to the commission of the crime, was correct. State v. Duestrow, 137 Mo. 44; State v. Howell, 177 Mo. 188; State v. Smith, 250 Mo. 350. (4) The witness, George Nicholas, was one of the thieves who committed the larceny and therefore was not an accomplice of defendant in receiving the stolen goods. State v. Cohen, 254 Mo. 437; State v. Shapiro, 216 Mo. 379; State v. Richardson, 248 Mo. 569.
Convicted of receiving stolen money and his punishment fixed at two years in the penitentiary, defendant appeals to this court.
On the evening of March 12, 1912, five persons, imbued with a larcenous purpose, assembled at a saloon kept by defendant in what is known as "Kerry Patch" in St. Louis City. Those five persons were: Ned Raftery, Podgy Burns, James Kennedy, Ben Shaw and George Nicholas, the latter a Gypsy boy between sixteen and seventeen years of age. The Gypsy boy informed his associates (Raftery et al.) that his uncle, Milasch Vlado, who lived only a block from the saloon, was possessed of a large amount of gold coin. A scheme was devised to steal Vlado's money, and the five conspirators went to the home of Vlado and stole therefrom about $ 8000 in gold coin, one revolver and some other articles. There is some evidence that defendant knew that Raftery et al. were going to commit this larceny before the crime was committed, but that point is left a little indefinite. It is, however, conceded that as soon as the five thieves hereinbefore named had stolen Vlado's gold they brought it to defendant's saloon, poured it out upon the floor, where it was divided by each of the thieves grabbing it up as fast as possible.
According to the statements of George Nicholas, the Gypsy boy, who gave evidence for the State, when the stolen money was divided the defendant intimated that if they would give him part of the spoils probably he would secure bonds for their release in case they should be arrested. Thereupon each of the thieves gave defendant a handful of the stolen coin; the witness Nicholas giving him $ 150.
Defendant closed his saloon at one o'clock a. m. on the night the money was stolen, and was arrested in company with Ben Shaw, one of the thieves, about 5:30 next morning when he returned to his saloon.
The police officer who made the arrest testified that defendant admitted to him that three of the thieves each gave him twenty dollars of the stolen gold, making sixty dollars in the aggregate.
As a witness in his own behalf, defendant denied that he received any of the stolen money. He also introduced other evidence, which if true would have justified a verdict of acquittal. It is unnecessary to further discuss the evidence, as defendant does not contend that it was insufficient to support the verdict of the jury. His demand for reversal is based upon certain alleged errors in the instructions to the jury by the trial court.
OPINION.I. The first insistence of defendant's learned counsel is that the instruction of the court did not require the jury to find that the defendant received the stolen money with a felonious or unlawful intent. He cites numerous authorities, mostly from other States, which will be found in the notes of our official reporter prefixed to this opinion. It was undoubtedly the rule at common law that in cases of this character the burden rested upon the State to prove that the stolen property was received by the defendant with the felonious intention of depriving, or aiding in depriving, the true owner of his property. While this was the common law rule, we are not aware of any rule which prevents the General Assembly of our State from restricting the operation of said common law. This is precisely what was done by the enactment of section 4554, Revised Statutes 1909, whereby a prima-facie case of feloniously receiving stolen goods is made out against the defendant by proof that he received the goods "knowing the same to have been . . . stolen." If defendant received the stolen money with an intention of returning it to the true owner, that was a matter of defense upon which he would have had a right to introduce evidence, and upon the coming in of such evidence the issue of intent could have been dealt with by a proper instruction. There was no such evidence in this case, and the trial court did not err in omitting it from his instructions. Such is the rule of this court in State v. Rich, 245 Mo. 162; and in the recent case of State v. Cohen, decided at this term, and officially reported in 254 Mo. 437.
In the absence of countervailing evidence proof of the receiving of stolen property which the recipient knows has been stolen establishes all the...
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