State v. Wright , 18 Del. 228 ( 1899 )

Lore, C. J.:

J.:—The gravamen of the offense is receiving stolen goods. That count of the indictment seems to set out the material element. The indictment is sustained.

Frederick Bierman was called by the State and asked from what cars he got the air-brake valves which he sold to Wright, the prisoner, and replied that he got them from the Wilmington & •Horthern cars on the Wilmington and Horthern tracks. Mr. Cooper stated that he was taken by surprise by the testimony of the witness and in order to lay ground for contradiction asked the following question : “ Did you not testify in my office in the presence of Officer Lucas and Mr. Hutchins a few days ago, that you took those valves from the B. & O. cars ?”

Objected to by counsel for defendant on the ground that the State could not contradict its own witness.

Lobe, C. J.:—He is entitled to contradict his own witness when taken by surprise. That has been settled in this Court.

Lobe, C. J., charging the jury:

Gentlemen of the jury:—William Wright, the prisoner at the bar, is charged in this case with receiving stolen goods, knowing them to be stolen. The goods alleged to be stolen are laid in the indictment as the property of the Baltimore & Ohio Railroad Company. That is a material allegation and should be proved as laid. Where witnesses are produced and make statements upon the stand that differ from those made elsewhere it has been the practice not only in this State, but it is recognized generally in such cases, where the party against whom the testimony is given is taken by surprise by such testimony, that he may call witnesses to contradict it, and if the testimony shows that witnesses in this case have testified in one way here and in another way elsewhere, it is for you to say which testimony you will believe, and you are to determine that from the circumstances surrounding the case. It is for you under all the circumstances surrounding the case to give credit to whichever of such statements in your judgment is more likely to be the truth. It is necessary in this case to satisfy you from the evidence beyond a reasonable doubt, first, that these goods were stolen; second, that they were the property of the Company laid in the indictment; third, that this prisoner when he bought and received them, knew that they were stolen goods. That knowledge may come to him from declarations made at the time, or from the circumstances surrounding the transaction. In such matters the buyer is presumed to have had ordinary intelligence and you may take into consideration the circumstances under which the things were received as affecting his knowledge whether the person offering them for sale came by them fairly or otherwise; and it is for you to say whether he knew from such circumstances that they were stolen goods. If you have any reasonable doubt upon any one of these material points, that doubt should inure to the acquittal of the defendant. But, gentlemen, it must be a reasonable doubt, such as would govern and control your judgment in the ordinary transactions of life.

Verdict, guilty.