People v. Lardner

Mr. Justice Dunn

delivered the opinion of the court:

William Lardner and William Caesar were indicted in the criminal court of Cook county for larceny and receiving stolen property. Lardner had a separate trial, was convicted of receiving stolen property and was sentenced to imprisonment in the penitentiary. By this writ of error he seeks to reverse the judgment on the grounds that it is not sustained by the evidence and that the court erred in instructing the jury.

The rug charged to have been stolen was alleged to have been the property of Marshall Field & Co. The evidence did,not sustain the charge that it was stolen. Two witnesses testified that they saw the rug in the store on May 24, 1918, and that it was missing the next day. The witnesses were both buyers of Marshall Field & Co., arid no evidence was introduced as to their duties other than is to be implied from the word “buyer” and the fact that they checked up the stock of rugs. It appears that there were 5000 rugs in the rug department, but not what employees, or how many, made sales of or had access to the rugs or what record was kept of sales. One of the buyers was asked on his direct examination: “What did you find on your check-up? Were any rugs missing that had not been sold?” and answered, “Three pieces.” This is not evidence that the three pieces were not sold by some other employee authorized to make sales. The only basis for inferring that the rug was stolen is that on one day it was in the stock and the next day it was not.

Thomas McFarland, a police sergeant, testified that on May 24 he turned the corner on Monroe street, walking south on Fifth avenue, and saw two men going into a store. He followed them and saw Lardner and Caesar talking to a tailor about getting some clothes made. There were two packages there lying at the window, and he asked the men where they got them, and they said they found them. There were three rugs, including the rug in question, and fourteen silk shirts in the packages. There was no evidence that the other two rugs or the shirts were stolen. The goods were in two separate packages. Lardner did not have either of the packages on his person or in his hand or on his arm. The witness did not know which one of the two said they found the packages. This was all the evidence in chief. ,

Lardner testified that he met Caesar at Fifth avenue and Adams street and they went to the tailor shop. Neither of them had any bundle when they went into the tailor shop. When the officer came in Lardner was in the middle of the place and the packages were up in front. The officer opened the packages and saw the rugs and asked whose they were, and Lardner said he knew nothing about them. He did not see the rugs and did not know the packages were there, did not tell the sergeant that he found the packages, and denied stealing the rugs or telling anyone that he found them. He stated that he did not have in his possession on that day or any previous day that rug or any other rug. He had no package when he met Caesar and Caesar had none, and they had none when they went into the tailor shop. William J. Becwar testified in rebuttal that when the two men came into his store they had bundles before they were arrested.

The court instructed the jury that “possession of stolen property, the proceeds of a robbery or burglary, soon after the commission of the offense, is prima facie evidence of the guilt of the person in whose possession such property is found.” There was no evidence that the rug in question was the proceeds of a robbery or burglary, and there was no proof that it was in the possession of Lardner. The testimony of the prosecution is that there were two packages, but only one contained stolen property, and it is not shown whether that one was in the possession of Lardner or Caesar. The possession of stolen property soon after it is stolen is prima facie evidence of guilt only when the possession is exclusive in the defendant. If the place where the property is found is such that others have access to it as well as the defendant, the circumstance is not evidence that the defendant, and not someone else, stole the property. (Watts v. People, 204 Ill. 233.) The instruction was not limited to the count for larceny but left the jury at liberty to apply it to either count. The effect of the verdict of guilty of receiving stolen property without any finding on the larceny count was to acquit the defendant of larceny. Knowledge by the defendant, when he received it, that the property was stolen is essential to a conviction of the crime of receiving stolen property knowing it to be stolen, and such knowledge must be proved beyond a reasonable doubt. (Cohn v. People, 197 Ill. 482.) The recent possession of stolen property is not evidence of such knowledge. (State v. Buella, 89 Mo. 595; State v. Richmond, 186 id. 71.) In People v. Mirabella, 294 Ill. 246, the error in giving this instruction where counts for larceny and receiving stolen property are joined, without limiting it to the larceny count, is recognized, though the error was disregarded and the judgment affirmed in that case because the evidence in the record was such that the jury could not reasonably return any other verdict than one of guilty.

It is insisted that it was error to refuse instruction No. 15 asked by the defendant, as follows:

“The defendant is presumed to be innocent until his guilt is established by- such evidence as will exclude every reasonable doubt. Therefore the law, requires that no person shall be convicted of a crime until each and every one of the jury is satisfied by the evidence in the case, to the exclusion of every reasonable doubt, that the defendant is guilty as charged. If any one of the jury, after having duly considered all the evidence and after having consulted with his fellow-jurymen, should entertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty.”

Of the last sentence in this instruction it was said in People v. Lee, 237 Ill. 272: “Whatever may be said of this instruction as an abstract proposition, it ought not to be given in any case, since its inevitable tendency is to discourage agreements of juries. It amounts to little more than an invitation to the jury to disagree.” The same observation applies to refused instruction No. 17. It was not' error to refuse these instructions. People v. LeMorte, 289 Ill. 11; Addison v. People, 193 id. 405; Little v. People, 157 id. 153.

It is insisted that instruction No. 7, which was refused, should have been given. It is as follows:

“In order to necessitate an acquittal in this case it is not necessary that the jury should entertain a strong doubt of the guilt of the defendant when all the evidence is considered together. If any juror can give a good reason, based on the evidence, for doubting the defendant’s guilt, then he has a reasonable doubt.”

It was properly refused. It is not a question, in arriving at a verdict, whether a doubt is strong or weak but whether it is a reasonable doubt. A reasonable doubt was sufficiently defined in the instructions which were given, and this refused instruction would have been of no assistance to the jury, but was rather an invitation to base a verdict of not guilty on some fanciful or visionary doubt.

The judgment is reversed and the cause remanded to the criminal court.

Reversed and remanded.