Wertheimer v. State, 25166.

• Decision Date: 13 December 1929
• Docket Number: No. 25166.,25166.
• Citation: 169 N.E. 40,201 Ind. 572
• Parties: WERTHEIMER et al. v. STATE.
• Court: Indiana Supreme Court

201 Ind. 572

169 N.E. 40

WERTHEIMER et al.

v.STATE.

No. 25166.

Supreme Court of Indiana.

Dec. 13, 1929.

Appeal from Delaware Circuit Court, Clarence W. Dearth, Judge.

Lionel A. Wertheimer and another were convicted of receiving stolen goods, and they appeal. Affirmed.A. E. Needham, of Muncie, for appellants.

Arthur L. Gilliom, Atty. Gen., and Henry L. Gause, Deputy Atty. Gen., for the State.

MARTIN, J.

Appellants were tried by a jury upon an indictment which charged them with receiving stolen goods in violation of section 381, c. 169, Acts 1905 (section 2465, Burns' 1926). They were each found guilty, fined $50, and sentenced to imprisonment in the Indiana State Prison for not less than 1 nor more than 14 years.

The alleged errors which are assigned and not waived are the overruling of their separate and several motions to quash the indictment and the overruling of their motion for a new trial. All of the 40 reasons stated in the latter motion are waived, except those alleging that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and one alleging that the court erred in refusing to sustain appellants' motion to require certain merchandise and property to be withdrawn from the sight and presence of the jury.

[1][2] Appellants contend, under their first assignment, that the indictment is insufficient because it does not specifically charge that the property received by appellants was received by them knowingly from the thief. Under their second assignment they contend that, in order to sustain a verdict against them, there must be evidence that they received the goods in question from the thief himself or under circumstances that directly connect them with the thief, and that there is an absence of such evidence.

Section 2465, Burns' 1926, under which this prosecution is brought, provides that: “Whoever buys, receives, conceals, or aids in the concealment of, anything of value, which has been stolen, taken by robbers, embezzled, or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled, or obtained by false pretense, shall, if the goods be of the value of twenty-five dollars or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than twenty-five dollars shall suffer the punishment prescribed for petit larceny.”

The indictment, in part, reads as follows: “The grand jury *** upon their oaths do present and charge that Lionel A. 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 so bought, received, and concealed, by said Lionel A. Wertheimer and Irvin Goldberg, had been unlawfully and feloniously stolen, taken and carried away *** by some person or persons to the grand jury unknown; that said Lionel A. Wertheimer and Irvin Goldberg at the time they so bought, received, concealed and aided in concealing said goods and property well knowing that the same had been so as aforesaid unlawfully and feloniously stolen, contrary,” etc.

As a general rule an indictment is sufficient if the charge made therein is substantially in the language of the statute defining the offense. State v. Miller (1884) 98 Ind. 70;Betts v. State (1884) 93 Ind. 375;Benham v. State (1888) 116 Ind. 112, 18 N. E. 454. The charge in this indictment follows the language of the statute. It charges the essential elements of this crime, (1) the receipt or concealing (2) of goods that have been stolen (3) knowing them to have been stolen, Goodman v. State (1895) 141 Ind. 35, 39 N. E. 939;Semon v. State (1902) 158 Ind. 55, 62 N. E. 625 (4) with a felonious intent, Gandolpho v. State (1870) 33 Ind. 439; Rapalje, Larceny, § 322. And it sufficiently apprises the defendants of the nature and character of the charge against them, Greer v. State (1929 Ind. Sup.) 168 N. E. 458.

[3] The allegation that the defendants “unlawfuly and feloniously” received goods that had been previously unlawfully and feloniously stolen, knowing that the same had been stolen, is equivalent to charging that defendants knowingly received the goods which at the time of receiving were still under the larcenous taking, Gandolpho v. State, supra; Kaufman v. State (1874) 49 Ind. 248;Owen v. State (1876) 52 Ind. 379; for, if the goods when received were not the subject of larceny, the receiving would not have been felonious, Partlow v. State (1929 Ind. Sup.) 166 N. E. 651;Blum v. State (1925) 196 Ind. 675, 148 N. E. 193; Semon v. State, supra.

[4] The transaction of receiving stolen goods is identified in part by the description of the stolen things and their ownership. The owner's name is important in identification and must be stated if known. In this state receiving or concealing stolen goods, knowing them to have been stolen, is an independent, substantive offense and not merely an accessorial one. The particular thing denounced by the statute is the receiving of stolen goods knowingly. The name of the thief, or other person from whom the accused received the goods, is not necessary as identifying matter, and for that reason need not be alleged in the indictment. Semon v. State, supra; Beuchert v. State (1905) 165 Ind. 523, 76 N. E. 111, 6 Ann. Cas. 914; 2 Wharton Crim. Proc. (10th Ed.) § 1168, 1175; 17 R. C. L. 89, 90. (See discussion, infra.)

[5] The evidence of the state, briefly, is: That the general store of Chenoweth and Wiggins, at Losantsville, was burglarized during the night of December 3, 1924, and certain clothing was taken including coats, vests, overalls, shirts, underwear, blanket lined coats, and one dozen sheep-lined coats. That on December 6, 1924, the appellant opened a fire sale in the Hub department store which they operated in Muncie (following a fire there on November 26). That Wiggins, accompanied by police officers, went to appellants' store early on the day the sale was to begin and discovered some of the clothing which had been stolen from the Losantsville store, and later, with the aid of a search warrant, discovered and identified a considerable amount of such clothing. That appellants when questioned about the stolen property, so discovered in their possession, said they had invoices for all of the merchandise, but were unable to produce the invoices. That they denied all knowledge as to how some of the stolen property, which was identified, came to be in their possession. That some of the coats still had tags with the Losantsville store cost mark on them and were included in the invoices of that store. That the lower end of the tags on some of the garments were removed, and that one of the appellants was seen by a witness to remove tags from other coats during the fire sale and place them in his pocket. That the wholesale cost of the sheep-lined coats to the Losantsville store was $7.50 each, and that appellants were selling them at prices ranging from $1.95 to $5.95.

It was also proved that clothing was found in appellants' store on December 6, which had been stolen from a store at Fowlerton on November 28, and from a store at Albany (Ind.) on July 20. On cross-examination, the owner of the burglarized store at Losantsville and a police officer testified that the identity of the burglar or thief who had taken the goods from that store was unknown, although diligent search had been made to discover it.

From the evidence the inference of guilt can reasonably be drawn. The evidence is sufficient to sustain the verdict, and the verdict is not contrary to law.

[6] Guilty knowledge is an essential element of the crime of receiving stolen goods, and it is necessary that allegation and proof be made that the accused receiver of the property knew that the property was stolen property at the time he received or concealed it. Goodman v. State, supra; Semon v. State, supra; 3 Bishops New Crim. Proc. (2d Ed.) 1856. (The word “conceal,” as used in the statute, is not to be given its literal meaning of hiding or secreting, but includes any acts or conduct which assist the thief in converting the property to his own use, People v. Reynolds (1852) 2 Mich. 422, or which may prevent or render more difficult its discovery by the owner, 2 Brill Cyc. Crim. Law 1457.)

[7][8] Where, as in this state, the crime of receiving stolen goods is an independent, substantive offense and not merely an accessorial one, it is not necessary to prove that the accused knew from whom the property was stolen, or when or where it was stolen, or who stole it, or the circumstances under which it was stolen. 2 Brill Cyc. Cr. Law § 929, 1188-9; Holford v. State (1827) 2 Blackf. 103; Kaufman v. State, supra. Proof that the accused knew the property was stolen property cannot often be, and need not be, made directly, by absolute and positive evidence, but such knowledge may be proved or inferred from the circumstances. 2 Brill Cyc. Cr. Law 1469, 1472-4; 17 R. C. L. 85; State v. Rose (1927) 136 A. 295, 5 N. J. Misc. R. 213; State v. Stanley (1927) 123 Kan. 113, 254 P. 314; Burton v. State (1925) 102 Tex. Cr. 110, 277 S. W. 390; Sears v. State (1927) 106 Tex. Cr. 219, 291 S. W. 547.

[9][10][11] The question of the existence of such knowledge is one of fact for the jury, Robinson v. State (1882) 84 Ind. 452, and it is sufficient if the facts and circumstances surrounding a defendant's receiving and concealing of the property were such that the jury could reasonably infer and conclude therefrom that he knew it was stolen. Goodman v. State, supra; State v. Zeman (1924) 63 Utah. 422, 226 P. 465;Tyler v. State (1920) 17 Ala. App. 495, 86 So. 93;Stemple v. U. S. (C. C. A. 1923) 287 F. 132;People v. Grove (1918) 284 Ill. 429, 120 N. E. 277;State v. Nattalie (1927) 163 La. 641, ...