State v. Zeman

• Decision Date: 26 March 1924
• Docket Number: 4061
• Citation: 226 P. 465,63 Utah 422
• Court: Utah Supreme Court
• Parties: STATE v. ZEMAN

226 P. 465

63 Utah 422

STATE v. ZEMAN

No. 4061

Supreme Court of Utah

March 26, 1924

Rehearing denied June 9, 1924.

Appeal from District Court, Third District, Salt Lake County; G. A Iverson, Judge.

L Zeman was convicted of receiving stolen goods for his own gain, and he appeals.

AFFIRMED.

Stewart Alexander & Budge, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and W. Hal. Farr, Asst. Atty. Gen., for the State.

CHERRY, J. GIDEON, THURMAN, and FRICK, JJ., concur. WEBER, C. J., did not Participate.

OPINION

CHERRY, J.

The information in this case charges that the defendant did willfully, unlawfully, feloniously, and for his own gain, buy and receive certain described stolen property, consisting of merchandise of the value of $ 130, well knowing that the same had been stolen, etc. A trial by jury resulted in a verdict of guilty. His motion for a new trial being overruled, defendant was sentenced to imprisonment in the state prison for an indeterminate term, from which judgment he has appealed to this court.

The record presents for review the admission of certain evidence offered by the state, the sufficiency of the evidence to sustain the verdict, and the giving and refusing to give certain instructions to the jury.

The state, after proving that the goods described in the information had been stolen and had been thereafter received by the defendant, was permitted to show, over defendant's objection, that the defendant had received and had in his possession on March 2, 1922, other merchandise which had been stolen from different merchants at dates both before and after the time when the property described in the information had been stolen, without proving that defendant knew the property so received had been stolen. This evidence was admitted for the sole purpose of proving guilty knowledge by the defendant at the time he received the property described in the information, and the jury were instructed to consider it for no other purpose.

The admission of this evidence is assigned as error. Defendant's counsel contend that such evidence is incompetent because it was in no way connected with the receipt of the property described in the information, and was not received from the same person, and it was not shown that the defendant knew the property was stolen when he received it. It is further contended that the evidence of defendant's possession of articles stolen subsequent to the date on which he is charged with receiving the property in question was incompetent. In this connection, it must be observed that while the defendant is charged with having received the property in question on or about December 22, 1921, the evidence produced by the state established his possession thereof on March 2, 1922, and the defendant himself claimed that he first obtained it in the early part of February, 1922. The other stolen property shown to have been in the possession of defendant according to the evidence, had all been stolen on or before January 5, 1922.

The evidence was competent and properly admitted. Referring to such evidence, it is said in 1 Wigmore on Ev. (2d Ed.) § 325:

"(1) It is immaterial whether in the other instances a knowing possession is shown. It is the mere fact of the repeated possession of other stolen goods that lessens the chances of innocence. (2) It is immaterial that the other goods were similar in kind to those charged, or were received from the same person. On the contrary, the greater the variety of goods and of the sources they came from, the more striking the coincidence, and the more difficult to believe the explanation is an innocent one. (3) It is immaterial whether the other possessions occurred before or after the possession charged; it is the multiplication of instances that affects our belief, and not the time of their occurrence, provided the time is not so distant as to be accountable for on the theory of chance acquisition."

These conclusions are supported by numerous cases. Buechert v. State, 165 Ind. 523, 76 N.E. 111, 6 Ann. Cas. 914; State v. Cohen, 254 Mo. 437, 162 S.W. 216, Ann. Cas. 1915C, 86; Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973; Jeffries v. United States, 7 Ind. T. 47, 103 S.W. 761; State v. Baker, 84 W.Va. 151, 99 S.E. 252; State v. Boyd, 195 Iowa 1091, 191 N.W. 84.

It is urged that the evidence is insufficient to sustain the verdict, because there was no substantial proof that the defendant had knowledge that the property received by him had been stolen.

The defendant was a dealer in new and secondhand clothing, shoes, men's furnishings, etc., and kept a store in Salt Lake City. On December 20, 1921, the property described in the information was stolen from the store of Butterworth & Sons at West Jordan. On March 2, 1922, the property was found in defendant's store at Salt Lake City. At the same time there was also found in defendant's store merchandise which had previously been stolen from three other merchants, at divers dates, both before and after the time when the property had been stolen from Butterworth & Sons. It was shown that the stolen goods were found in various places throughout defendant's store, mixed with other goods; that valuable silk shirts were stuck away in underwear boxes and mixed with cotton shirts and men's underwear, and shoes placed in odd boxes; and that the labels and marks on part of the goods had been removed and destroyed.

The defendant claimed that 50 or more valuable silk shirts were received by him through a transaction whereby he loaned a negro $ 80 on a trunk and other property; that 18 months later, the trunk not having been redeemed, he opened it and for the first time discovered that it contained the silk shirts. He accounted for the possession of the remaining goods by stating that he bought a job lot of merchandise for $ 163 from an unknown person whose name or place of residence he did not learn, who claimed to have been a dealer in the country and who brought the merchandise to him in a truck and sold it at a discount.

Guilty knowledge may be proved by inferences and circumstances, and is a question of fact for the jury. The proof must amount to more than the creation of a suspicion of guilt, but in this case the possession at one time of merchandise stolen from four separate merchants, the circumstances tending to show an effort to conceal the identity of the goods, together with the questionable improbable explanation of his possession given by defendant, was sufficient evidence to be submitted to the jury on the question of guilty knowledge, and the verdict of guilty cannot be set aside for lack of evidence to support it.

With respect to the instructions of the court to the jury, the principal arguments in appellant's brief are directed to the giving of instruction No. 3 and part of No. 5. The bill of exceptions fails to show any exception to either of these instructions, and the giving of them is not assigned as error in the appellant's assignments of error. They are therefore not reviewable on this appeal.

The defendant requested the court to instruct the jury to the effect that before the defendant could be convicted, it must be shown beyond a reasonable doubt that the defendant "received the property with the fraudulent intent of depriving the true owner of the immediate possession thereof," which request was refused; on account of which error is assigned. The statute (Comp. Laws Utah 1917, § 8297) defining the crime charged is as follows:

"Every person who, for his own gain, or to prevent the owner from again possessing his property, buys or receives any personal property exceeding $ 50 in value, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five years; if the value of the property so bought or received be $ 50 or less in value, he is guilty of a misdemeanor."

The information charged that defendant "did willfully unlawfully and feloniously, and for his own gain, buy and receive certain stolen property," etc. There was no charge that the property was received "to prevent the owner from again possessing his property," and the instruction requested was therefore not pertinent to any matter...