State v. William Smith.

• Citation: 98 W.Va. 185
• Decision Date: 10 February 1925
• Docket Number: (No. 5190.)
• Parties: State v. William Smith.
• Court: Supreme Court of West Virginia

98 W.Va. 185

State

v.William Smith.

(No. 5190.)

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1925.

Decided February 10, 1925.

Receiving Stolen Goods Indictment Must Allege Name of Person From Whom Accused Received Goods or That Such Person is to Grand Jury Unknown.

An indictment for the statutory offense of receiving stolen goods must allege the name of the person from whom the accused received such goods, or that such person is to the grand jury unknown.

(Receiving-Stolen Goods. 34 Cyc. p. 521.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Hatcher, Judge, absent.

Error to Circuit Court, Raleigh County. William Smith was convicted of receiving stolen goods, and he brings error.

Reversed, indictment quashed, and accused discharged.

C. L. Lilly and A. P. Farley, for plaintiff in error. E. T. England, Attorney General, and R. A. Blessing, Assistant Attorney General, for the State.

Miller, Judge:

Defendant was tried in the criminal court of Raleigh County, on an indictment charging that he "did feloniously receive and have two Winchester 16-gauge repeating shot guns of the total value of $100.00 of the goods and chattels of the East Gulf Coal Company, a corporation, which said goods and chattels were lately before feloniously taken, stolen and carried away from the East Gulf Coal Company, a corporation, he the said William Smith, then and there well knowing the said goods and chattels to have been feloniously taken, stolen and carried away," etc.

On the trial defendant was found guilty as charged in the indictment, and the judgment of the criminal court was that he be confined in the state penitentiary for a period of from two to ten years. His petition to the circuit court for a writ of error was denied, and to that judgment we awarded the present writ of error.

In his petition to this court defendant assigns the same grounds of error assigned in his petition to the circuit court, twenty-nine in number; but for some reason not appearing, his counsel have not appeared in this court, nor filed any brief or argument in support of the propositions presented by their petition. The attorney general has, however, tiled his brief and argument in support of the judgment.

Of the grounds assigned for reversal of the judgment, the first is the overruling of defendant's demurrer and motion to quash the indictment. The indictment was evidently founded upon section 18 of chapter 145 of the Code, providing that: "If any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted."

It will be noted that the statute reads: "If any person buy or receive from another person." Does the indictment, by alleging that the defendant did feloniously "receive and. have" the property alleged to have been stolen, sufficiently charge all the essential facts and circumstances constituting the crime described by the statute? Our statute is identical with that of the State of Virginia, and has remained as it came to us from the Virginia Code of 1860. In Hey v. Commonwealth, 32 Graft. 946, it was held: "To sustain the prosecution under the statute four things must be proved. 1st. That the goods or other things were previously stolen by some other person. 2nd. That the accused bought or received them from another person, or aided in concealingthem. 3rd. That at the time he so bought or received, or aided in concealing them, he knew they had been stolen. 4th. That he so bought or received them, or aided in concealing them, malo animo, or with a dishonest purpose."

At the common law, receiving stolen goods, knowing the the accused was an accessory to the theft; and before the enactment of statutes on the subject, it wam to have been stolen, was a misdemeanor, on the theory thats necessary to allege the name of the principal offender, if known; if not, that he was unknown. Under the present statute in England, and by the statutes in a number of the States, one who buys or receives stolen goods, knowing them to have been...