State v. Rich.

• Decision Date: 05 July 1912
• Citation: 149 S.W. 464
• Parties: STATE v. RICH.
• Court: Missouri Supreme Court

149 S.W. 464

STATE v. RICH.

Supreme Court of Missouri, Division No. 2.

July 5, 1912.

1. RECEIVING STOLEN GOODS (§ 7)—VARIANCE BETWEEN ALLEGATIONS AND PROOF— DESCRIPTION OF PROPERTY.

Where an information described the stolen property which accused was charged with receiving as 415 pounds of copper, and the evidence showed that it was copper wash boiler bottoms, having a tin finish on the inside and a gloss finish on the outside and weighing 448 pounds, this was not a fatal variance, in view of Rev. St. 1909, § 5114, providing that a variance in the description of any matter or thing shall not be ground for acquittal, unless material and prejudicial.

2. RECEIVING STOLEN Goons ($ 3) — ELMENTS—INTENT.

To render a person guilty of receiving stolen goods knowing them to have been stolen, it is not necessary that he should receive them with a fraudulent intent.

3. CRIMINAL Law (§ 1144)—APPEAL — PRESUMPTIONS.

Where the bill of exceptions does not state that accused's wife did not testify, nor that it contains the substance of all the evidence, but merely states that it contains substantially the evidence, it will be presumed that the wife testified, and hence that an instruction as to the credit to be given to her testimony was proper.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Aleck Rich was convicted of receiving stolen goods, and he appeals. Affirmed.

The defendant has appealed from the judgment of the circuit court of the city of St. Louis convicting him of receiving stolen goods, and sentencing him to the penitentiary for two years. The information charged the defendant with buying and receiving 415 pounds of copper, knowing that it had been stolen. The evidence tended to show that on or about August 22, 1910, a room at the factory of the Nelson System Manufacturing Company, a corporation, was burglarized, and 266 copper wash boiler bottoms stolen therefrom. These "wash boiler bottoms" were of copper, and weighed all together 448 pounds. The bottoms had a tin finish on the inside and a gloss finish on the outside. They were intended, to be used in the manufacture' of wash boilers, and were of special size, shape, and finish. The defendant was a junk dealer. The evidence tended to show that the bottoms were worth 20 cents a pound, and that defendant bought them from a man at 8 cents a pound, and there was other evidence tending to show knowledge on the part of defendant that the goods were stolen. There was evidence showing that defendant made statements to the police as to his purchase of the goods and as to his selling them to one Seltzer. The bill of exceptions does not purport to set out all the evidence in the case, but simply states that "this was substantially the testimony."

At the close of the state's evidence in chief, the defendant asked an instruction in the nature of a demurrer to the evidence, and moved the discharge of the defendant on the ground of variance. The demurrer was refused and the motion overruled. The first instruction set out all the essential elements of larceny, and told the jury that if they found that the copper had been stolen by another party and that the defendant did knowingly and wrongfully receive said property into his possession, knowing at the time that he received it that it was stolen, they should convict him of receiving stolen property. There was the usual instruction on the subject of statements made by the defendant, and also as to the evidence given by the defendant and his wife.

Bass & Bass, for appellant. Elliott W. Major, Atty. Gen., and J. M. Dawson, Asst. Atty. Gen., for the State.

ROY, C.

(after stating the facts as above). 1. Section 5114 of the Revised Statutes provides that, whenever there shall be a variance between the indictment and the evidence in the description of any matter or thing therein described, such variance shall not be ground for acquittal, unless the trial court shall find that such variance is material and prejudicial. The property described in the information was "four hundred and fifteen pounds of copper," while the evidence showed that it was "266 copper wash boiler bottoms, weighing 448 pounds, with tin finish on the inside and a gloss finish on the outside." We do not regard it as a case of failure of proof. The...