State v. Lewis , 117 W. Va. 670 ( 1936 )

Carson Lewis was indicted in the Intermediate Court of Kanawha County for receiving stolen goods, the indictment alleging that on the __ day of August, 1935, in that county, he received four shotguns and two watches "well knowing the said goods and chattels to have been unlawfully and feloniously stolen." To a judgment of the Circuit Court declining to review the judgment of the Intermediate Court based upon a verdict of guilty, he prosecutes this writ of error.

The principal assignment of error is based upon the language just quoted from the indictment, and the fact that the court instructed the jury that if they believed beyond a reasonable doubt that the shotguns and watches described in the evidence were stolen property and that they came into the possession of the defendant under such circumstances as that the defendant knew or had cause tobelieve they were stolen property, then the jury should find the defendant guilty. It will be noted that the charge in the indictment was for receiving the goods and chattels knowing them to have been stolen, whereas, the instruction is that a verdict of guilty may be returned if the jury believed beyond a reasonable doubt that the defendant had cause to believe the property to be stolen.

The reason for the confusion between the indictment and the instruction given by the court doubtless is that, whereas, under section 18 of chapter 145 of the Code of 1923, the offense of receiving stolen goods was committed only when the goods were known to be stolen, under section 18 of article 3 of chapter 61 of the Code of 1931, the statute was expanded to include cases where stolen goods were received if the recipient had reason to believe they had been stolen. It cannot be doubted that the amendment effected by the Code of 1931 is a substantial change in the definition and nature of this offense. The indictment followed the old statute: the instruction of the court followed the new. The indictment is sufficient under either the old or new section, but that fact does not dispose of the question before us.

Under the old section, there is but one way that the offense may be committed, and that is receiving goods knowing them to have been stolen. Under the new section, there are two ways that the offense may be committed, first, by receiving goods knowing them to have been stolen, and second, receiving goods with reason to believe that they were stolen. The indictment before us was restricted to the one offense: the instructions of the court included both. This statute is to be strictly construed. State v. Smith, 98 W. Va. 185, 126 S.E. 703. We are of the opinion that, since the accused could not be convicted upon a state of facts not charged in the indictment it was reversible error for the trial court to instruct the jury that he could be. An irregularity in this instruction is the fact that it uses the words "knew, or had cause to believe," whereas, under the statute, the words are "reason to believe." There is no assignment of error for this reason, but we do not wish to be understood as now approving a form of instruction that makes this departure from the language of the statute.

We are of the opinion that the assignment of error based upon the insufficiency of the description contained in the indictment of the articles alleged to have been stolen is without merit. They were described as four shotguns and two watches, and the ownership and value of each class of goods was alleged. In State v. Bailey, 63 W. Va. 668, 60 S.E. 785, the rule is laid down that in a larceny indictment it is not necessary to describe the goods stolen by reference to any mark or identification by which they can be distinguished from other goods of the same or similar kind. In State v. Blair, 63 W. Va. 635,60 S.E. 795, an indictment was approved which described the goods stolen as "one man's saddle," and "one horse." The discussion appearing in the opinion of this case at page 636 points out a number of descriptions that have been approved by the courts, among them "one watch," "a certain mare," "six towels," etc. We think the description contained in this indictment is sufficient to satisfy the rule thus indicated.

The plaintiff in error contends that it was reversible error for the trial court to permit the prosecuting attorney to question the witness Schuck, a police officer, concerning a written statement made by the witness Cantrell, in which the latter confessed guilt in the theft of the goods and implicated the defendant as having received them. For this position, reliance is placed upon the case of State v. Price, 114 W. Va. 736,174 S.E. 518, holding that the declarations of one conspirator made after the conspiracy is at an end are not admissible in evidence as against his co-conspirator. The rule enunciated in the Price case we think is not applicable here. The purpose of the proof and the circumstances of its introduction are entirely different in the two cases. In thePrice case, the declarations of the conspirator were used as direct evidence of the guilt of a co-conspirator. Here, on cross examination of the witness Cantrell, counsel for the defendant first developed the fact that Cantrell had made a written statement implicating Lewis. This, apparently, was done in an effort to show, or to infer, that Cantrell had turned state's evidence and caused the arrest of Lewis in an effort to procure some form of concession for himself, and thus, to a degree, to discredit his testimony. When the prosecuting attorney examined Schuck, he made no reference to the contents of the statement save to the fact that it implicated Lewis. This fact had already been developed by the defense. The purpose of questioning the witness Schuck about the statement of Cantrell was merely to clarify the record as to the time that it was made and the circumstances under which it was made. The reference to the implication of Lewis was necessary in order, from the state's viewpoint, to clear up a possibly erroneous impression created by the questions of counsel for the defendant propounded to the witness Cantrell. Under the circumstances, we do not believe that this situation falls within the rule of the Price case, nor do we believe that it falls within any other rule making it reversible error.

Being of the opinion that the state's instruction No. 1 was reversible error, the judgments of the Circuit Court of Kanawha County and of the Intermediate Court of Kanawha County will be reversed, the verdict of the jury set aside and a new trial awarded.

Reversed and remanded.