Goldman v. Commonwealth , 100 Va. 865 ( 1902 )

Whittle, J.,

delivered the opinion of the court.

Plaintiff in error, R. A. Goldman, was jointly indicted along with S. Goldman, in the Hustings Court of the city of Roanoke, for feloniously 'buying and receiving certain railroad brass, known as switch-locks, the property of the Norfolk and Western Railway Company, with intent to defraud. There was a demurrer and motion to quash the indictment, both of w'hich were overruled, and thereupon the prisoner, R. A. Goldman, pleaded not guilty. At the trial, the jury found the. prisoner guilty, as charged in the indictment, and fixed his punishment at sixty days in the city jail. .The court overruled the prisoner’s motion to set aside the verdict and grant him a new trial, and rendered judgment upon the verdict, and the case is here upon a writ of, error to that judgment.

Rrom the view taken of the case by this court, it is only necessary to notice the last assignment of error, which involves the sufficiency of the evidence to warrant a conviction of the prisoner of the felony of which he stands charged.

It will not be inappropriate in approaching the consideration of that question to do so in the light of certain well .settled principles of law which inhere in every prosecution against a citizen for crime.

It devolves upon the Commonwealth to prove, first, the corpus delicti, that is, the fact that the crime charged has been actually perpetrated; and, secondly, that it was committed by the accused. To justify a conviction, the evidence must be so convincing as to exclude every reasonable doubt of the guilt of the prisoner.

In McBride’s Case, 95 Va. 826, this court said: “The prisoner is presumed to be innocent until his guilt is established, and he is not to be prejudiced by the inability of the Commonwealth to point out any other criminal agent, nor is he called upon to vindicate his own innocence by naming the guilty man. He rests secure in that presumption of innocence until proof is adduced which establishes his guilt beyond a, reasonable doubt, and whether the proof be direct or circumstantial, it must be such as .excludes any rational hypothesis of the innocence of the prisoner.”

In the ease in judgment, the corpus delicti is that the prisoner did “feloniously buy and receive twenty-eight pieces of railroad iron, brass, metal and composition thereof, and known as switch-locks, of the value of fifty cents each, being the goods and chattels ... of the Norfolk and Western Railway Company, a corporation, with intent feloniously to defraud.”

The act upon which the prosecution is based is found in section 3715 of the Code, as amended by Acts of 1889-’90, p. 30, which declares that “If any person buy or receive,” amongst other things, articles such as are described in the indictment, “with intent to defraud, he Shall be confined, in the penitentiary not less than one, nor more than two, years; or in the discretion of the jury, in jail not exceeding one year.” And the statute further provides that possession of such articles, so bought or received from any other person than the manufacturer thereof, or his authorized agent, or of a regularly licensed dealer therein, shall be prima facie evidence of such intent.

It will be observed that the statute does not declare that possession of the contraband articles shall be prima facie evidence, or, indeed, any evidence that they were bought or received from any other person than the manufacturer thereof, &c.; but that when so bought or received, possession shall 'be prima facie evidence of an intent to defraud. So that before any such presumption can arise from the possession of the articles, it is incumbent upon the Commonwealth to prove, as an essential element of the offence, that they were bought or received in the manner proscribed by the act. Upon that subject, there is no evidence in the record.

Nor does the evidence relied on for that purpose establish with that degree of conclusiveness required in criminal prosecutions,'that the Norfolk and Western Railway Company has lost any of its switch-looks, or that those described in the indictment are the property of that company. On the contrary, but two witnesses testify directly on that point. Neither proves that the company Had lost any switch-locks, and both decline to positively identify the locks in question as the company’s property; although they testify to circumstances tending to support that theory. On the other hand, the witness -Beetcn, introduced by the Commonwealth, testifies that the Norfolk and Western Bail-road Company, the immediate predecessor of the Norfolk and Western Bailway Company, each having the same initials, “N. & W. B. B.,” used locks similar to the ones in question. Non constat but that these locks were the property of the old company, and not of its successor. It is true, another witness testifies that he unlocked two of these switch-locks with a key furnished him by a switch-tender of the Norfolk and Western Bail-way Company, but the same, doubtless, would have been the case with switch-locks of the old company of similar pattern.

It does not appear that the Norfolk and Western Bailway Company had ever missed any of its switch-locks. “Where the alleged owner thinks he has lost the property, but will not swear that he has, . . . the ownership is not, by this evidence, sufficiently proved.” 2 Bishop on Crim. Law, sec. 752. Such alleged owner could hardly expect a jury to find that his ownership of property was proved beyond a reasonable doubt, when his own doulbts were so great that he could neither, swear that he had lost, n-or that the property in question was his own.

The prosecution originated as follows: Some of the large brass lamps, belonging to the Norfolk and Western Bailway Company, had been stolen from its passenger cars, and the agents, suspecting that they might be found in the barrel of junk then in the freight depot, consigned in the name of S. Goldman, shipper, to the Ajax Metal Company, of Philadelphia, opened the barrel and discovered the articles described in the indictment.

Whilst the witness, Baldwin, a detective in the employment of the Norfolk and Western Bailway Company, testifies with characteristic zeal, in his effort to fix the guilt upon the accused, a careful scrutiny of his evidence shows more or less conflict between it and that of other witnesses for the Commonwealth. These discrepancies are the proper subject of comment, and must impair the value of his testimony. At his instance, Officer Rigney accompanied him to the junk-shop of S. Goldman and was present at a conversation between him and the prisoner. Yet, so far as appears from his testimony, Rigney heard no admission from the prisoner that he bought and sold junk in S. Goldman’s shop, or that “he had bought no switch-looks except some brasses which he had gotten from a Showman,” as Baldwin testified. His testimony on that point is that prisoner stated that he had not bought any railroad locks, since Baldwin notified him not to do so, except a few which he got from Beeton, all of' which were broken. True, Rigney says, he was a few feet die-taut during part of the conversation between Baldwin and prisoner, but he certainly heard the question and 'answer referred to, and his testimony as to what that answer was is essentially different from that of Baldwin’s version of it.

Again, the action of the prisoner in connection with the purchase of locks from Beeton repels the inference to be drawn from the alleged admission to Baldwin, that he was in control of the shop and business, and tends to show his true status in relation to the business of ,S. Goldman.

Beeton distinctly testifies that, when he carried certain junk, including the broken switch-locks, to the ¿hop, prisoner told him to unload it, but that the sale was to prisoner’s father,.who came into the shop and fixed the price and paid the purchase money.

The witness Baldwin likewise testified that prisoner showed him 'an entry in the books, dated March 4, 1901, as follows: “Beeton’s bicycle-shop, Campbell avenue, S. W., 73 lbs., scrap brass fittings and H. & W. R. R. locks, $2.00;” that the words “dST. & W. switch-locks” were not in the books at the time, but were put there afterwards; that he was absolutely certain of this, as certain as that he was sitting there, or that he was living. He subsequently dame back on the witness-stand, and admitted that he was mistaken, and testified that the entry had not been changed; that the witness Eo'binett had told him that he was mistaken.

“Upon a demurrer to evidence, in ascertaining the facts established by any one witness, everything stated by him, as well on his cross-examination as upon his examination-in-ehief, must be considered. Facts imperfectly stated in answer to one question may be supplied by the answer to another. And where, from one statement considered by itself, an inference may be deduced, that inference may be strengthened or repelled by the facts disclosed in another.” Ware v. Stephenson, 10 Leigh, 161.

How it appears from the evidence on behalf of the prisoner, not in conflict with any direct testimony adduced by the Commonwealth and just inferences to be drawn therefrom: That S. Goldman is the mother of the prisoner, a minor, nineteen years of age; that she is a regularly licensed junk-dealer, occupying a shop and carrying on business in the city of Boanoke; that the business is managed by her son, Hemi'an Goldman; that prisoner had no interest in the business, and received no wages for his services, but stayed about the shop, and did what he was bidden to do. Among his other duties was that of accompanying to the depot of the Horfolk and Western Bailway Company freight, belonging to S. Goldman, intended to be shipped to other points. On March 11, 1901, there was taken to the depot of the railway company in the city of Boanoke, by the prisoner, in company with a negro drayman, a barrel marked “S. Goldman,” to be shipped to the Ajax Metal Company, of Philadelphia. The barrel was received for shipment, the contents classifled as “scrap lead,” and a bill of lading issued in the name of S. Goldman, consignor, and delivered to the prisoner.

There is n'o evidence tending to show that the prisoner had anything to do with packing the barrel, or any knowledge of its contents, other than what may be inferred from his alleged statement to Detective Baldwin, that the shipment of 800 pounds of junk, contained no brasses or locks, other than those bought of Beeton, a statement which rather tends to confirm the theory that prisoner had no knowledge of the fact that the property in question was ever in the possession of his mother, or formed any part of the contents of the package referred to. The property was not claimed by the accused, and there is no suggestion that he was in anywise interested in its purchase or sale. His only possession of the barrel, in evidence in the case, is the fact that he delivered it, in company with the negro drayman, at the Horfolk and Western depot. His agency extended to overlooking the shipment of the freight, and that of tire drayman to hauling the junk to the depot. Each had the barrel in custody for the purposes of his agency; neither had possession of it in the sense of ownership.

It need hardly be argued that by no just interpretation can such custody alone be construed to amount to guilty possession in contemplation of the statute. The possession intended by the statute must imply something more than mere physical contact, otherwise, a drayman or transportation company, having tire custody of contraband articles for transportation merely, would be liable to indictment. The statute must, therefore, be •construed to mean a guilty possession, as contradistinguished from mere custody, without claim of title to, or interest in the subject.

It further appears that S. Goldman received a letter from the consignees of the junk complaining of a shortage in weight of the shipment in question, and that the prisoner, on behalf of his mother, earned the letter to the agent of the company and demanded an .explanation of the shortage. The enquiry of the detective had already apprised him of the fact that the company was at that time investigating the question as to whether any of its switch-locks had passed through his mother’s junk-shop; and it is hardly reasonable to suppose, if he was possessed of the guilty knowledge attributed to him, that he would have courted an investigation likely to connect him with the commission of a felony. Applying the doctrine of a demurrer to evidence in all its stringency; and according full faith and credit to the testimony of Baldwin, the evidence is, nevertheless, plainly insufficient to warrant a verdict of conviction. '

In addition to tan entire absence of proof of the corpus delicti, the following language of Judge Moneure (in a case in which the appellate court, upon writ of error, set aside a verdict of conviction and awarded a new trial, and the doctrine of which has repeatedly received the sanction of this court. See cases cited in Shepard’s Index to 29th Grattan) is apposite to the evidence relied on to connect the prisoner with the alleged of-fence: “These circumstances, taken singly or altogether, while-they create a suspicion of guilt, are yet inconclusive and wholly insufficient to prove such guilt, but are also consistent with the fact of innocence. If they be not at least as consistent with the-fact of innocence, as with t-he fact of guilt, they certainly do not amount to such degree of proof as to connect the accused with the offence, and to warrant his conviction thereof.” Johnson’s Case, 29 Gratt. 814. And in Burch’s Case, 1 Virginia Decisions 861, it was said that the verdict should be set aside when the -evidence makes only a case of suspicion or probability of guilt. See also Brown’s Case, 97 Va. 791.

An adherence to the.basic principles upon which the criminal jurisprudence of this Commonwealth' has ever rested is far too important to justify a departure from them in order to- meet the exigencies of particular cases; and the hurtfulness to society of the -class of offences within the purview of the statute, affords no justification for the court’s sustaining convictions in doubtful cases by way of prevention.

It follows from what has been said, that the judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had therein.