Wertheimer And Goldberg v. State

Decision Date13 December 1929
Docket Number25,166
Citation169 N.E. 40,201 Ind. 572
PartiesWertheimer and Goldberg v. State of Indiana
CourtIndiana Supreme Court

Rehearing Denied March 13, 1930.

1. INDICTMENT AND AFFIDAVIT---In Language of Statute---Generally Sufficient.---As a general rule, an indictment is sufficient if the charge made therein is substantially in the language of the statute defining the offense. p. 577.

2. RECEIVING STOLEN GOODS---Indictment---In Language of Statute---Held Sufficient.---An indictment for receiving stolen goods which charges the receipt or concealing of goods that have been stolen, knowing them to have been stolen, with a felonious intent, being substantially in the language of the statute defining the offense (2465 Burns 1926), is sufficient. p. 577.

3. RECEIVING STOLEN GOODS---Indictment---Averment that Goods were "Unlawfully and Feloniously" Received---Equivalent to Averment that They had been Subject of Larceny.---An averment in an indictment for receiving stolen goods (2465 Burns 1926) that the defendants "unlawfully and feloniously" received goods that had been previously unlawfully and feloniously stolen knowing that the same had been stolen, was equivalent to charging that defendants knowingly received goods which, at the time of receiving, were still under the larcenous taking for, if the goods when received were not the subject of larceny, the receiving would not have been felonious. p. 577.

4. RECEIVING STOLEN GOODS---Indictment---Owner's Name Must be Stated, if Known---As Means of Identification.---In an indictment for receiving stolen goods, the goods received must be identified as the goods stolen, and the owner's name must be stated, if known, as it is an important means of identification. p. 577.

5. RECEIVING STOLEN GOODS---Indictment---Name of Person from whom Goods Received---Averment Unnecessary---In this state the receiving or concealing of stolen goods is an independent, substantive offense, and not merely an accessorial one, and the name of the thief or other person from whom the accused received the goods is not necessary as an element of the identification of the goods, and, therefore, need not be alleged in the indictment. p. 577.

6. RECEIVING STOLEN GOODS---Evidence Held Sufficient to Sustain Conviction.---Evidence held sufficient to sustain conviction of receiving stolen goods in violation of 2465 Burns 1926. p. 578.

7. RECEIVING STOLEN GOODS---Guilty Knowledge Essential Element of Crime---Necessity of Allegation and Proof.---Guilty knowledge is an essential element of the crime of receiving or concealing stolen goods (2465 Burns 1926), and it is necessary that allegation and proof be made that the accused receiver or concealer of the property knew that the property was stolen property at the time he received or concealed it. p. 579.

8. RECEIVING STOLEN GOODS---"Conceal"---Meaning of Word---Not to be Given Literal Meaning.---The word "conceal," as used in the statute relative to receiving or concealing stolen goods (2465 Burns 1926), is not only to be given its literal meaning of hiding or secreting, but it includes any act or conduct which assists the thief in converting the property to his own use or which may prevent or render more difficult its discovery by the owner. p. 579.

9. RECEIVING STOLEN GOODS---Proof Unnecessary---Name of Owner or Thief---When or Where Stolen---Circumstances of Theft.---Since the crime of receiving or concealing stolen goods is an independent, substantive offense, and not merely an accessorial one, it need not be proved that accused knew from whom the property was stolen, who stole it, when or where it was stolen, or the circumstances under which it was stolen. p. 579.

10. RECEIVING STOLEN PROPERTY---Proof of Knowledge that Goods were Stolen---How Made.---Proof that the accused knew that the property was stolen property need not be made by direct positive evidence, but such knowledge may be proved by or inferred from the circumstances. p. 579.

11. RECEIVING STOLEN GOODS---Knowledge that Goods were Stolen---Question for Jury.---The question of the existence of accused's knowledge that the goods received were stolen is one of fact for the jury. p. 580.

12. RECEIVING STOLEN GOODS---Knowledge that Goods were Stolen---Evidence Sufficient if Jury Could Infer such Knowledge.---It is sufficient to prove that the accused had knowledge that the goods were stolen by facts and circumstances surrounding the receipt or concealment of the property if they were such that the jury could reasonably infer therefrom that he knew the goods were stolen. p. 580.

13. RECEIVING STOLEN GOODS---Proof of Knowledge that Goods were Stolen---By Circumstantial Evidence---Sufficiency.---Where the State relies wholly on circumstantial evidence to prove that the accused had knowledge that the goods were stolen, the circumstances relied on must point clearly and conclusively to his guilt and exclude every reasonable hypothesis of innocence sufficiently to convince the jury beyond a reasonable doubt that the accused knew that the property was stolen. p. 580.

14. RECEIVING STOLEN GOODS---Evidence---Possession of Recently Stolen Goods---Strong Circumstance to be Considered.---In a prosecution for receiving stolen goods, unexplained possession of goods recently stolen is a strong circumstance to be considered with all the evidence in the case on the question of the guilty knowledge of the accused that the property had been stolen. p. 581.

15. RECEIVING STOLEN GOODS---Evidence---Possession of Recently Stolen Goods---Accompanied by Contradictory Statements as to Possession.---In a prosecution of two persons for receiving stolen goods, proof of possession of recently stolen property, together with con- tradictory statements as to the possession, and as to how the goods came to be in their possession, is a strong circumstance to be considered in determining whether the defendants had knowledge that the goods were stolen, as is the fact that they were selling the goods at retail for much less than the wholesale price. p. 581.

16. RECEIVING STOLEN GOODS---Charge and Proof that Accused Received Property from Thief Unnecessary---Earlier Case Disapproved.---In a prosecution for receiving stolen goods, it is not necessary to specifically charge and prove that the accused received the property directly from the thief, the offense being made out by proof that it was received from anyone if the other essential elements are present (Foster v. State, 106 Ind. 272, 277, disapproved). p. 583.

17. RECEIVING STOLEN GOODS---Evidence---Identity of Thief or Next Former Possessor Immaierial---Therefore, Need Not be Proved.---In a prosecution for receiving stolen property, neither the thief nor the next former possessor is on trial, and his identity is not a material matter to be proved. p. 584.

18. RECEIVING STOLEN GOODS---Thief Unknown---Averment in Indictment Unnecessary---When Alleged Must be Proved.---In a prosecution for receiving stolen goods, if the thief is unknown, that fact need not be alleged, but if the name of the thief or the fact that his name is unknown is alleged, such allegation must be proved for the identification of the offense as charged. p. 584.

19. RECEIVING STOLEN GOODS---Thief Unknown---Averred in Indictment---Proof Necessary---As to Want of Knowledge by Grand Jury.---In a prosecution for receiving stolen goods, where it is alleged in the indictment that the thief was unknown to the grand jury, it is not incumbent on the State to show in the first instance affirmatively that such fact was unknown to the grand jury, but it is merely incumbent on the State to prove to the trial jury that the fact alleged to be unknown was unknown, or to prove such a state of facts or circumstances as renders the unknown fact uncertain, in which event, such fact is presumed to have been unknown to the grand jury. p. 584.

20. RECEIVING STOLEN GOODS---Stolen Goods Found in Defendant's Possession---Limitation on Goods Introduced by State.---In a prosecution for receiving stolen goods, the State, in introducing in evidence stolen property found in defendant's possession, is not limited to the property described and charged in the indictment to have been found in his possession. p. 585.

21. RECEIVING STOLEN GOODS---Evidence---Other Stolen Goods Found in Defendant's Possession.---In a trial for receiving stolen goods, evidence tending to prove that other stolen goods were found in the possession of the defendant at the time of or prior to the receiving complained of is competent to be considered with all the other evidence in the case on the question of guilty knowledge, such evidence tending to support an inference that the accused, when he received the goods in controversy, had knowledge of their larcenous character. p. 586.

22. RECEIVING STOLEN GOODS---Evidence---Repeated Receipt of Stolen Goods---Inference of Guilty Knowledge.---The receipt of stolen goods on repeated occasions under circumstances tending to arouse suspicion affords a fair basis for an inference of guilty knowledge. p. 586.

From Delaware Circuit Court; Clarence W. Dearth, Judge.

Lionel A. Wertheimer and Irvin Goldberg were convicted of receiving stolen goods, and they appealed.

Affirmed.

A. E. Needham, for appellants.

Arthur L. Gilliom and James M. Ogden, Attorney-Generals, Harry L. Gause and V. Ed Funk, Deputy Attorney-Generals, for the State.

Martin, J. Myers and Travis, JJ., concur in result. Willoughby, J., absent.

OPINION

Martin, J.

Appellants were tried by a jury upon an indictment which charged them with receiving stolen goods in violation of Acts 1905, ch 169, § 381, § 2465 Burns 1926. They were each found guilty, fined $ 50, and sentenced to imprisonment in the Indiana State Prison for not less than one nor...

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  • Wertheimer v. State, 25166.
    • United States
    • Indiana Supreme Court
    • December 13, 1929
    ... ... Wertheimer and Irvin Goldberg *** did then and there unlawfully, and feloniously buy, receive, conceal and aid in the concealment of fifteen coats, of the value of seventy-one dollars and seventy-five cents of the personal property of John Chenoweth and Wilbur Wiggins *** which said goods and property, prior to the time it was ... ...

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