State v. Ross

• Decision Date: 23 November 1920
• Citation: 46 N.D. 167,179 N.W. 993
• Parties: STATE v. ROSS.
• Court: North Dakota Supreme Court

46 N.D. 167

179 N.W. 993

STATE

v.ROSS.

Supreme Court of North Dakota.

Nov. 1, 1920.

Rehearing Denied Nov. 23, 1920.

Syllabus by the Court.

In a criminal action for buying and receiving stolen property, it is held that the information sufficiently avers the ownership of stolen property and alleges a public offense.

In such action where the court charged the jury that “the finding of stolen property in the possession of another shortly after said property has been stolen raises the presumption of guilt as against the person in whose possession the same is found, but this presumption, however, is a rebuttable one, and if the possession is explained to the satisfaction of the jury then this presumption is overcome and should not be considered as any evidence of the guilt of the accused,” it is held that such instruction, considered with other instructions, was not erroneous.

Appeal from District Court, Mountrail County; Leighton, Judge.

Sam Ross was convicted of buying and receiving stolen property, and he appeals. Affirmed.

Grace, J., dissenting.F. F. Wyckoff, of Stanley, Dudley L. Nash, of Minot, and E. T. Burke, of Bismarck, for appellant.

R. E. Swendseid, of Stanley, and O. B. Herigstad, of Minot, for the State.

BRONSON, J.

The defendant was convicted upon an information charging him with buying and receiving certain stolen meat and pork. He has appealed from the judgment of conviction. The evidence has not been sent to this court. The defendant demurred to the information and made a motion in arrest of judgment. The body of the information charges the commission of a crime as follows:

“That at said time and place the said Sam Ross did knowingly and feloniously buy and receive certain stolen property, to wit, two hind quarters and one front quarter of dressed stag beef fresh weighing about 75 pounds each and one piece of dressed fresh side pork, weighing about 10 pounds, from a party or parties unknown, not the property of said Sam Ross, knowing the same to have been stolen, and with the intent to deprive the owner thereof, then and there of the value of $50; the same being a part of the beef and pork stolen as follows, to wit, that at the said time and place an unknown person or persons did willfully, unlawfully and feloniously take, steal and carry away two dressed beeves and one dressed hog from the slaughterhouse used by Sjol Bros. near Van Hook, N. D., then and there the property of Sjol Bros. and not the property of the person or persons unknown, with the intent to deprive the owner thereof, then and there of the value of $200.”

The defendant challenges the sufficiency of this information to constitute a public offense upon the grounds that there is no direct allegation that the stolen meat was the property of Sjol Bros.; that it does not allege that the unknown parties were guilty of the theft, nor does it negative lawful possession or ownership in such unknown parties; that the defendant may have had the right to use the slaughterhouse “then and there the property of Sjol Bros.”

[1] We are of the opinion that the information cannot be challenged upon any such grounds. 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 phrase, “then and there the property of Sjol Bros., and not the property of the person or persons unknown, with the intent to deprive the owner thereof,” clearly applies and refers to the meat alleged to have been stolen. See 34 Cyc. 521; State v. Johnson, 17 N. D. 554, 118 N. W. 230. The objection raised concerning the allegation about the parties unknown is without merit. See State v. Denny, 17 N. D. 519, 117 N. W. 869;State v. Pirkey, 22 S. D. 550, 118 N. W. 1042, 18 Ann. Cas. 192. Among the instructions given to the jury the court charged as follows:

“The finding of stolen property in the possession of another shortly after said property has been stolen raises the presumption of guilt as against the person in whose possession the same is found, but this presumption, however, is a rebuttable one, and if the possession is explained to the satisfaction of the jury, then this presumption is overcome and should not be considered as any evidence of the guilt of the accused. The finding of property in the possession of the defendant which has been stolen is, of course, not in itself sufficient to warrant a conviction, but is merely a circumstance to be considered by the jury in passing upon his guilt or innocence.”

The defendant challenges this instruction as erroneous on the ground that it raised a presumption as a matter of law that he was guilty.

[2] We are of the opinion that this charge was not erroneous; otherwise the court charged the jury that in order to find the defendant guilty they must determine beyond a reasonable doubt that at the time he received the property he knew it to be stolen, and that at the time it came into his possession he bought or purchased the same with the intent to deprive the true owner of the meat.

The application of this presumption, as an evidentiary presumption in larceny cases is well known. 25 Cyc. 133. It is an evidentiary presumption of guilt deducible from the unexplained possession of property. 25 Cyc. 133. See note 12 L. R. A. (N. S.) 199;70 Am. Dec. 447. It is not unfair nor improper to apply this presumption, an evidentiary presumption deducible from the possession of property, equally as well to a person charged with unlawfully receiving stolen property knowing it to be stolen as to one charged with its original taking. See People v. Weldon, 111 N. Y. 569, 19 N. E. 279;Goldstein v. People, 82 N. Y. 231;Martin v. State, 104 Ala. 71, 16 South. 82, 85;Boyd v. State, 150 Ala. 101, 43 South. 204, 205; 34 Cyc. 524, 548; State v. Rosencrans, 9 N. D. 163, 164, 82 N. W. 422;State v. Guild, 149 Mo. 370, 50 S. W. 909, 73 Am. St. Rep. 395, 400;State v. Richmond, 186 Mo. 71, 84 S. W. 880;Jenkins v. State, 62 Wis. 49, 21 N. W. 232, 238;State v. Lamb, 39 S. D. 307, 164 N. W. 69;State v. Hoshaw, 89 Minn. 307, 310, 94 N. W. 873. The charge as a whole upon this question, in our opinion, properly submitted to the jury this presumption as an evidentiary presumption, and therefore was not prejudicially erroneous.

The judgment is affirmed.

BIRDZELL and ROBINSON, JJ., concur.

CHRISTIANSON, C. J. (concurring specially).

I concur in an affirmance of the judgment of conviction, and agree with what is said in the opinion prepared by Mr. Justice BRONSON as to the sufficiency of the information.

While I am not prepared to give my unqualified approval to the phraseology of the instruction which is assailed as erroneous, a careful consideration of the entire charge, and an examination of the authorities bearing thereon, has led me to the conclusion that the instruction is not prejudicial. There is no question but that the presumption which arises from the unexplained possession of recently stolen property is one of fact, and not one of law. While the instruction assailed is not couched in the most happy language, it did, in effect, if construed as a whole, inform the jury that the presumption is one of fact. For in the instruction assailed it is said:

“This presumption, however, is a rebuttable one, and if the possession is explained to the satisfaction of the jury, then this presumption is overcome and should not be considered as any evidence of the guilt of the accused. The finding of property in the possession of the defendant which has been stolen is, of course, not in itself sufficient to warrant a conviction, but is merely a circumstance to be considered by the jury in passing upon his guilt or innocence.”

The jury is specifically told that, “if the possession is explained to the satisfaction of the jury, the presumption is overcome and should not be considered as any evidence of the guilt of the accused.” The sentence immediately following is in effect that the presumption is not one of law, but “is merely a circumstance to be considered by the jury in passing upon” the guilt or innocence of the accused. The jury is further informed that this circumstance is not of sufficient probative force, standing alone, to overcome the presumption of innocence.

It should also be noted that the court informed the jury fully as to the averments of the information, and, among others, gave the following instruction:

“In order to find the defendant guilty, you must find beyond a reasonable doubt: First, that the defendant Sam Ross did knowingly and intentionally buy and receive two hind quarters and one front quarter of dressed fresh stag beef weighing about 75 pounds each, and one piece of dressed fresh side pork weighing about 10 pounds, or some portion thereof. Second, that at the time the said defendant received the same he knew it to be stolen. Third, that at the time the same came into his possession he bought or purchased the same with the intent to deprive the true owners of said meat. Fourth, that said meat was in fact the property of Sjol Bros. and not the property of the persons from whom he received the same, if, of course, you find he received it. Fifth, that if these acts were done they were done in Mountrail county, and at some time within three years prior to November 4, 1919, and also find that said meat was of some value.”

The jury was required to fix the value of the property in its verdict, and fixed such value at $50.

GRACE, J. (dissenting).

This is an appeal from a judgment adjudging the defendant guilty of buying and receiving stolen property, and sentencing him to be confined in the state penitentiary at Bismarck for the term of one year and three months, and to pay costs in the sum of $225.45. The judgment was entered upon a verdict of guilty returned by the jury. The defendant was charged with the commission of a public offense, by amended information which, omitting formal parts and...