Opinion
No. 33555.
April 10, 1939.
1. RECEIVING STOLEN GOODS.
Evidence held sufficient to justify conviction for receiving or obtaining stolen property.
2. RECEIVING STOLEN GOODS.
An indictment for receiving stolen goods charging that defendant did "buy or obtain," instead of "buy or receive," stolen property, and which omitted words "taken" from allegation as to defendant's knowledge that property had been "stolen and carried away," was sufficient to charge offense; the phrases "buy or obtain" and "buy or receive" being practically synonymous (Code 1930, section 1017).
3. RECEIVING STOLEN GOODS.
Under statute penalizing buying or receiving of stolen property, either buying or receiving of property knowing it to be stolen would make out the crime (Code 1930, section 1017).
4. RECEIVING STOLEN GOODS.
Under statute providing that, if person buys or receives for any consideration personal property of any value feloniously taken from another knowing such to be the fact, he shall be guilty of receiving stolen goods, a person receiving stolen property, knowing it to be such, is guilty of felony regardless of value of property (Code 1930, section 1017).
5. RECEIVING STOLEN GOODS.
In prosecution for receiving stolen property, refusal to instruct jury that it must find value of property was not error, notwithstanding that the state in its instructions treated matter as though value must exceed $25 in order for offense to become a felony (Code 1930, section 1017).
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
M.C. Young, of Aberdeen, for appellant.
The demurrer interposed to the indictment should not have been overruled, but should have been sustained. The allegation that the defendant did "unlawfully and feloniously buy and obtain the dressed meat," is not the language of the statute and does not mean the same thing and is not of the same construction. Section 1017 of the Code of 1930 states that, "If a person buy or receive . . ." The indictment in the instant case does not sufficiently follow this statute to stand. The word "obtain" is wholly different and has a different meaning to the language used in the code. Any dictionary or lexicon will bear out this contention. So the indictment should fall for this reason. The indictment sets out that the meat "had been feloniously stolen, taken and carried away . . ." This allegation contains three elements, somewhat reversed, which are "the taking, the stealing and the carrying away," these three items or elements must be in a part of each larceny. After this clause we have in the indictment the clause, "said H.A. Claxton well knowing the said personal property to have been recently feloniously stolen . . . and carried away as aforesaid . . ." One element, "take or taken" is omitted from this allegation and it is absolutely necessary, and its omission is fatal, even though it is followed by . . . "as aforesaid." That cannot supply the word "taken or take." The word "stolen" cannot substitute or supply for it and neither can it refer back to the first allegation, because the last allegation set out does not correspond with or fit the first or antecedent allegation first above set out. All the books say that "take or taken" is absolutely necessary. The three words must be there, not only in the first allegation of the larceny, but also following the defendant knew or had good reason to know that the property had been stolen, taken and carried away. One of these elements cannot be omitted and refer back to splice or supply it. There are no presumptions of this kind in the criminal law. The carrying away or asportation is not the taking, and stealing is not the taking.
36 C.J., pages 747 and 748.
The state must prove beyond a reasonable doubt that appellant is a thief, and if the evidence does not prove it or there is a lack of evidence then the state's case must fail and the jury should have been so advised. The appellant under the law to be guilty must know the property was stolen and he receive it and do likewise in all respects.
The trial court should have granted instruction No. D. This charge advises the jury that they find the value of the property. By the refusal of this charge the jury had no instruction as to value. The appellant certainly had a right to have the jury pass on whether it was a felony or a misdemeanor. Section 1295 of the Code of 1930 provides that if the value of the property is less than $25 in a charge of receiving stolen goods, the penalty is as for petty larceny, that is, a misdemeanor.
36 C.J., pages 856 and 857; Stokes v. State, 58 So. 677; Francis v. State, 87 Miss. 493, 39 So. 897.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Formal and technical words are not indispensable in an indictment. If the offense charged is certainly and substantially described in language substantially equivalent in meaning to the language of the statute, it is sufficient.
Snowden v. State, 164 Miss. 613, 145 So. 822; Word v. State, 178 So. 821; Ousley v. State, 154 Miss. 451, 122 So. 731; Smith v. State, 172 So. 132.
It occurs to the writer of this brief that the words "buy and receive" are substantially equivalent in meaning to the words "buy and obtain" and that this indictment should be upheld upon the authorities and upon the principle just referred to.
In charging the knowledge of appellant, the indictment recited that appellant knew, or had good reason to believe that this particular hog had been "stolen and carried away." It also stated that the verbiage does not follow that ordinarily used, to-wit: "taken, stolen and carried away." The demurrer in this case challenged the sufficiency of the indictment in that the word "taken" was omitted. When, in charging knowledge, the indictment charges that the indictee knew that the property had been "stolen and carried away," it would be unnecessary to be as technical in this respect, as in charging the actual larceny itself. These words "stolen and carried away" necessarily imply that the property was "taken."
Baygents v. State, 154 Miss. 26, 122 So. 187.
There is no doubt but that this sow was stolen. There seems to be no doubt but that the parties who actually stole it were the ones who actually delivered the meat from this hog into the possession of appellant. There is no doubt of appellant's possession of the hog. The only issue in the case was whether the defendant knew, or had good reason to believe that the hog was stolen when he bought her. There are certainly certain circumstances about the acquisition of his possession that were sufficient, it seems, to show that appellant knew, or at least had good reason to believe that his vendor's possession was unlawful.
Moody v. State, 179 So. 335.
Appellant says that the state should have given the jury the right to say whether the value was more or less than $25. It did this in Instruction No. 1.
Argued orally by M.C. Young, for appellant, and by W.D. Conn, Jr., for the State.
H.A. Claxton was indicted in the circuit court of Monroe county of having received or obtained stolen property, with knowledge of the fact. The indictment, omitting the formal parts, charged that the defendant "did unlawfully and feloniously buy and obtain the dressed meat of a certain Duroc brood sow, of the value of Thirty Dollars in money, the personal property of E.B. Heller, which said meat prior thereto recently had been feloniously stolen, taken and carried away, he, the said H.A. Claxton well knowing the said personal property to have been recently feloniously stolen and carried away as aforesaid, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Mississippi."
This indictment was demurred to, the demurrer affirming, first, that the indictment charged no crime known to the law; second, that the defendant did "buy and obtain" the property, which is not the language of the statute, and does not mean the same and is not of the same construction; and third, that it failed to allege that the defendant knew the property was "so taken," but charged him with "well knowing the said personal property to have been recently feloniously stolen and carried away as aforesaid," and that this was fatal, because it does not allege that the property was "taken." This demurrer ws overruled, and the case came on for trial before the jury.
It appeared that the appellant, H.A. Claxton, had in his possession a large dressed hog, weighing about 350 pounds, which he was trying to sell; that Heller, the alleged owner of the hog, saw it as it lay in the truck, and recognized his mark; also, the hog being imperfectly dressed, he saw by the hair remaining on the carcass that it was of the same kind as the missing hog. At that time hogs were selling at about ten cents a pound on foot, and about twelve or thirteen cents a pound dressed; and that the hog would bring about $42 dressed. When Heller identified the hog on the truck as being his missing hog, the appellant stated that he had brought it over about Egypt, some ten miles distant. He was thereupon asked to go with a deputy sheriff and the owner, Heller, to locate the person from whom he bought it. Upon reaching a certain part of the town of Amory, he stated that he had bought it from a person living near where they were; and Heller and the officer went with the appellant to the house where he claimed to have procured the hog, and entering, found indications that it had been dressed there. It appeared that this house was occupied by a woman whose son was in some way connected with the theft, and who was then in the state penitentiary, for participation in the crime. This woman testified that Claxton tried to induce her to testify that the hog belonged to her or her son, which she declined to do. The appellant left this place without going in, returning to the business section of the town, apparently trying to sell the meat, and had disposed of some of it. He demanded of the owner that he be paid $10, which he then claimed to have paid for the meat. This was refused, and a replevin suit was instituted to secure possession of the meat. On the trial in the circuit court the appellant testified that he paid $15 for the meat, or butchered hog, not knowing it was stolen.
It is urged that the evidence is not sufficient to sustain a conviction, but we are of the opinion that it is sufficient for that purpose. It is argued that the indictment was imperfect, in that it used the words "buy or obtain," instead of "buy or receive," and that the words have not the same meaning — that it was insufficient to charge that he obtained the meat. It is also complained that the language of the indictment above quoted omitted the word "take" or "taken," and for this reason was defective. We think the words used in the indictment are sufficient to charge the offense of which the appellant was convicted. They are practically synonymous with the words which, it is contended, should have been used.
The evidence was conflicting in regard to the value of the stolen property, appellant showing that it was of the value of $20; while Heller, the owner, claimed it was worth $42. The appellant requested an instruction to the jury to find the value of the property in their verdict.
While the statute makes a distinction between the crime of larceny or theft of property valued above $25, and that worth less than that sum, the larceny or theft of property in excess of $25 being a felony, and below that a misdemeanor, that distinction does not exist under the statute denouncing the offense here involved, which is section 1017, Code of 1930. That section reads as follows: "If a person buy or receive in any manner or on any consideration personal property of any value, feloniously taken away from another, knowing the same to have been so taken, he shall be guilty of receiving stolen goods, and, on conviction, shall be punished by imprisonment in the penitentiary not more than five years, or by imprisonment in the county jail not more than six months, and by fine, not more than two hundred and fifty dollars."
It will be noted that the phrase, "buy or receive," is used in the statute, and either the buying or receiving of property, knowing it to be stolen, would make out the crime. The statute expressly provides that if a person buys or receives in any manner, or for any consideration, personal property of any value feloniously taken away from another, knowing this to be the fact, "he shall be guilty of receiving stolen goods," etc. Under this section, the value of such goods is immaterial. If a person receives stolen property, knowing it to be such, in the manner denounced by the statute, he is guilty of a felony, regardless of the value of such property; although the punishment, in the discretion of the court, may be a sentence to the penitentiary, or by imprisonment in the county jail, or by a fine named in the statute.
It was, therefore, not error for the court to refuse the instruction to the jury that it must find the value of the property; and this is not affected by the fact that the state, in its instructions, treated the matter as though the value, in order to become a felony, must exceed $25.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.