State v. Sim , 92 Mont. 541 ( 1932 )

There is no evidence that appellant knew the property was stolen when he received it, and any presumption is overcome by the facts and circumstances shown.

Under the statute (sec. 11388, Rev. Codes 1921), as originally enacted, the property involved in the instant case was not enumerated or specified in the "presumptive evidence" clause. However, the evidence is that the articles involved in the instant case were stolen. In State v. Moxley, 41 Mont. 402,110 P. 83, it is said: "To make out the substantive offense herein defined and denounced, the evidence must establish (1) that the property in question was stolen; (2) that the defendant bought it or received it knowing it to have been stolen; and (3) that he did so for his own gain or to prevent the owner from regaining possession of it." While the law is established that the offense may be proven by circumstantial evidence, the circumstances here negative guilty knowledge. The transactions, so far as shown, took place in broad daylight, in plain view of the seller's and his father's place of business, under the belief in appellant that he was buying out of the seller's father's truck, used in the father's business, and none of the articles secreted in the least, — all kept in appellant's shop in open, plain view.

Not only is the verdict of guilty knowledge inconsistent with the hypothesis of innocence; the circumstances and preponderance of the evidence negative guilty knowledge. We respectfully submit that the evidence certainly does not establish guilty knowledge "beyond a reasonable doubt, that is, by evidence which excludes the idea" of honest dealing. It would seem that State v.Ducolon, 60 Mont. 594, 201 P. 267, is controlling in our favor. Especially, since the gist or gravamen of the offense is the guilty knowledge at the time of receiving the goods. (53 C.J. 508 et seq.; Jones' Commentaries on Evidence, 2d ed., p. 23 et seq.)

While, in most jurisdictions, if possession is recent, exclusive and unexplained, the presumption of guilt on a charge of larceny is sufficient to sustain a conviction (36 C.J. 875, note 20) the rule is otherwise in Montana. (Id., note 21, and cases cited; State v. Mullins, 55 Mont. 95, 173 P. 788;State v. Trosper, 41 Mont. 442, 109 P. 858.) While many courts do hold that recent possession raises a presumption of guilty of receiving stolen property but, if satisfactory explanation be given, there can be no conviction (53 C.J. 528, note 20), we respectfully submit that the better rule is that this presumption, which might apply to larceny, has no application to the instant case. For collection of authorities see 53 C.J. 529; 68 A.L.R. 187. This would seem especially true since this court has refused to apply the rule to larceny. Likewise, the law is confusing as to whether accused must know, merely believe, or only receive under circumstances sufficient to satisfy a man of ordinary or reasonable intelligence and prudence that the goods were stolen. (53 C.J. 509 et seq.) Guilty knowledge is a question of fact for the jury from all the facts of the case to determine (53 C.J., Art. 98), and may be proven circumstantially (State v. Ducolon, 60 Mont. 594, 597,201 P. 267), and this notwithstanding the purchase was made openly or in the presence of others. (53 C.J. 22, 98; Fulton v.State, 8 Ala. App. 257, 62 So. 959.)

There is another element in the case that has apparently not been treated by any court, and that is the provisions of Code section 11388: "It is presumptive evidence that such property was stolen if it consists of parts of machinery * * * or what is commonly termed ``junk' if purchased or received from a person under the age of twenty-one years," taken from the California Code, but California does not appear to have construed it; neither has this court. The section does not say that it shall be presumptive evidence to the one purchasing the property, but such a construction is the only reasonable and logical construction that could be given to the section. 53 Corpus Juris, page 510, sets out the authorities both ways on the proposition as to whether or not circumstances sufficient to satisfy a man of ordinary or reasonable intelligence or prudence is a test; but if goods have been actually stolen and belief on the part of the accused that they had been stolen has been induced by facts and circumstances accompanying the transaction sufficient to cause this belief, such belief is the equal of guilty knowledge and sufficient to sustain a conviction, the other elements of the offense being present.

Outside of the statute the law as to guilty knowledge is not by any means settled. This court says the evidence must establish (1) that the property in question was stolen; (2) that the defendant bought or received it knowing it to have been stolen (State v. Moxley, 41 Mont. 402, 110 P. 83). That is about as far as our courts have yet had to go except as to the circumstantial evidence rule (State v. Ducolon, 60 Mont. 594,597, 201 P. 267). The question is: Is the presumption provided for in the above statute evidence to the defendant when he buys the property that it was stolen? What was the intention of the legislature? The language of the statute is general; that is, the words of the statute are: "It is presumptive evidence," etc. It does not say that such evidence is presumptive evidence to be used at the trial only, and that it shall not be such presumptive evidence to the person purchasing the junk.

The defendant is presumed to know the law. When young Klein brought in the junk, he being a minor, the defendant knew that the law says that the property Klein was selling was stolen. He then had before him the evidence (sec. 10600, Rev. Codes 1921) that the property was stolen. It is submitted that such is the reasonable interpretation and the only one that gives any meaning and force to the statute. The intention of the statute would be defeated by a narrower construction. Such a construction cannot be given. (State v. DistrictCourt, 62 Mont. 275, 204 P. 600; Wilkinson v. LaCombe,59 Mont. 518, 197 P. 836.) "The evils to be remedied must be kept in mind." (Johnson v. Butte Superior Copper Co., 41 Mont. 158, 48 L.R.A. (n.s.) 938, 108 P. 1057.) The defendant was accused by information of receiving stolen property for his own gain, knowing it to have been stolen. He pleaded not guilty, went to trial, was found guilty, and, pursuant to the verdict of the jury, was sentenced to imprisonment in the county jail for 30 days. Thereupon he caused a bill of exceptions to be settled and appealed from the judgment.

The only assignment of error is: "There is no evidence that appellant knew the property was stolen when he received it and any presumption is overcome by the facts and circumstances shown."

The property alleged to have been stolen and received by the[3] defendant consisted of two International truck radiators, two International tractor radiator cores, one alemite Zerk grease gun, one fishing reel, about 18 feet of 3/8-inch copper tubing, and about 20 feet of 5/16-inch copper tubing.

The property was stolen from Alfred Klein by his 18 year old son, Bernard Klein, who sold it to the defendant. The only disputed question upon the trial was, Did the defendant buy it knowing it to be stolen?

Alfred Klein kept a hardware and implement store in the Jacobsen building, which faces on Main Street, in Cut Bank, Glacier county, Montana. The defendant operated a garage on the opposite side of the same street, not far from Klein's place of business. Klein, as a part of his business, sold International trucks and repairs for trucks and tractors. He also maintained a repair-shop situated in the same block as is the store but not on the same street. The shop faces on Broadway Street. Bernard, his son, worked for him occasionally, receiving as wages "board and room and clothes and spending money." At different times during February or March, 1932, Bernard, without authority from his father, took articles from the shop which he sold to defendant, who had known him since he was a small boy. About the middle of February, the boy testified, he delivered to defendant at the latter's garage two International truck radiators and two radiator cores. Defendant gave him 25 cents apiece for the articles. Later Bernard took from his father's shop two coils of copper tubing, which he pledged to defendant for a loan of money which he was to repay within two weeks. The time passed and he did not repay. The boy also delivered to defendant a fishing reel and one, if not two, Zerk alemite grease guns.

Alfred Klein, in giving testimony as to the value of the radiators, estimated their worth at $10, but this estimate was shaken upon cross-examination. The cores, he thought worth 50 cents or a dollar each. Defendant said he regarded the radiators as junk, and he was in the habit of paying 25 cents apiece for them, depending on the size of the radiators. He had loaned the boy $1.50 on the copper tubing. Alfred Klein testified that he asked the defendant if he got some radiators and copper tubing from the boy, and defendant said "No."

It appears that in 1930 Klein had warned defendant to refrain from buying stuff from the boy. In 1931 the boy had pledged a suit of his own clothes to defendant as security for a loan of $6.50. After some haggling between defendant and himself over the matter Klein, the father, had promised in writing to pay this amount to defendant, but he had not done so when the trial was held.

The sheriff testified that, acting under a search-warrant, he, with Alfred Klein, had found copper tubing "and a grease gun that Mr. Klein identified, then a fishing reel and two tractor radiator cores, and two International truck cores" in defendant's garage. Defendant said he had "asked the kid if they were stolen and the kid said no," to which the sheriff replied, "Nobody is going to tell you if they were stolen or not."

The governing statute is section 11388, Revised Codes 1921, as[1] amended (Laws 1931, Chap. 30, p. 77), of which we quote a part, which, for convenience, we divide into paragraphs (a) and (b): (a) "Every person who for his own gain or to prevent the owner from again possessing his own property buys or receives any personal property, knowing the same to have been stolen, is punishable by imprisonment in the state prison not exceeding five (5) years or in a county jail not exceeding six (6) months; (b) and it is presumptive evidence that such property was stolen if the same consists of jewelry, silver or plated ware or articles of personal ornaments, brass, bronze or copper fixtures, fittings or parts of machinery, or electrical supplies, or what is commonly termed junk, if purchased or received from a person under the age of twenty-one (21) years unless said property is sold by said minor at a fixed place of business carried on by said minor or his employer."

In order to make out the substantive offense defined in this statute, the "evidence must establish (1) that the property in question was stolen; (2) that the defendant bought it or received it knowing it to have been stolen; and (3) that he did so for his own gain or to prevent the owner from regaining possession of it." (State v. Moxley, 41 Mont. 402, 110 P. 83, 85.)

If the prosecution relates to property comprehended in paragraph (a), but not in paragraph (b), of the statute, the essential facts may be proved by direct or circumstantial evidence. (State v. Ducolon, 60 Mont. 594, 201 P. 267.) This is true, of course, with respect to property comprehended in paragraph (b), but here the burden on the state is lightened; it is presumptive evidence that the property was stolen if bought or received from a minor unless at a fixed place of business carried on by the minor or his employer.

A presumption is a deduction which the law expressly directs to be made from particular facts (sec. 10602, Rev. Codes 1921), and a presumption, unless declared by law to be conclusive, may be controverted by other evidence, direct or indirect; but unless so controverted, the jury are bound to find according to the presumption (sec. 10604, Id.). The presumption, in effect declared by section 11388, is a disputable one. (Secs. 10605, 10606, Id.)

The intended scope of the phrase "presumptive evidence" has[2] given us some concern. If the state shows that a defendant has bought or received personal property such as is mentioned in paragraph (b) from a minor other than at a fixed place of business carried on by the minor or his employer, it has shown, prima facie, that the property was stolen (State v. Nielsen,57 Mont. 137, 187 P. 639; State v. Colbert, 58 Mont. 584,194 P. 145); is it also to be presumed that the defendant bought or received the property knowing it to be stolen? We are constrained to answer the question in the affirmative.

The law applies to the person purchasing the property at the time of purchase as well as upon his trial.

The purpose of the statute is to interdict the disposition of personal property, of the character described, by minors in an irregular way, and to place a burden upon those who purchase or receive it under the prohibited circumstances. When a man purchases or receives any of the things mentioned in the statute from a minor at a place other than at a fixed place of business carried on by the minor, or the minor's employer, by the very terms of the statute he is bound to know that presumptively the thing has been stolen; the law says the thing is presumed to have been stolen and he is bound to know the law; knowing it he will not be heard to say he did not know the thing presumptively was stolen.

The statute is drastic, but we may not shirk our duty because of that. It is our duty to enforce the statute agreeably to its purpose. It was incumbent upon the defendant to overcome the statutory presumption against him; in order to escape conviction he had the burden of creating in the minds of the jury at least a reasonable doubt in his favor. This he did not do. However, regardless of the statutory presumption, we cannot say that, upon the evidence adduced, the circumstances considered, the jury would not have been justified in concluding that the defendant knew when he purchased the articles that the boy had stolen them.

The judgment is affirmed.

ASSOCIATE JUSTICES ANGSTMAN and MATTHEWS and HONORABLE LYMAN H. BENNETT, District Judge, sitting in place of MR. JUSTICE GALEN, disqualified, concur.