Opinion
09-28-1915
STATE v. CHECKVER.
Armon D. Chaytor, Jr., Dep. Atty. Gen., for the State. J. Frank Ball, of Wilmington, for defendant.
Argued before CONRAD and HEISEL, JJ.
Armon D. Chaytor, Jr., Dep. Atty. Gen., for the State. J. Frank Ball, of Wilmington, for defendant.
Morris Checkver was indicted for violation of the abovementioned statute, that is, for failing to enter in a book provided by the police department of the city of Wilmington, any description of the kind or quantity of certain pieces of brass purchased from one M., on April 27, 1915, and for failing to enter in said book any description of the person from whom the brass was purchased, as required by the statute.
At the trial it was shown that the book which the accused had, although of the kind which the police department furnishes to junk dealers for the purpose of keeping a record of their purchases, was obtained by the accused from one J., whose business he had purchased. The book, which failed to show any entry of the purchase of the brass from one M., as charged in the indictment, after formal proof, was offered in evidence by the state. Counsel for defendant objected to its admission as immaterial.
HEISEL, J. We think that if the defendant had made the entry in this book of the purchase of the brass as required by the statute, that he could not be convicted under the circumstances for not complying with this law; that if he had such a book as is furnished by the police department, whether furnished directly to him by the police department or indirectly to him through somebody else, it is the kind of book that is furnished by the police department, and comes into his possession and he is using it for the purpose designated in the statute, he would be complying with the law. Therefore we think this book is admissible and overrule the objection.
When the state had rested, counsel for accused moved the court to instruct the jury to find a verdict of not guilty, because the first count in the indictment charged (1) that the accused did not make certain required entries in the book; (2) that he did not makethem in a book prescribed by law. The state has not proved that the accused had the book in his possession at the time of the alleged purchase of the brass, but it has been shown that the book had been taken away from the accused by a police officer to be used as evidence in a case in the municipal court, and that the accused by direction of the police officer put his purchases while the book was out of his possession on slips of paper, which he could not find when asked for them later. It has not been shown that the book had been returned to the accused at the time of the purchase of the brass in question.
HEISEL, J. We decline to so instruct the jury, for the reason that this statute requires a junk dealer to do certain things, and whatever a police officer of the city of Wilmington may tell him to do or not to do does not relieve him of the responsibility of doing those things. He had no right to proceed with the junk dealer's business until he had such a book.' If the police department failed to deliver him a book, and if he chose to go on buying junk contrary to law, he takes his own chance, and the police department of the city of Wilmington by not furnishing him with the book cannot relieve him of his responsibility. It is his duty to have such a book before proceeding with his business as junk dealer.
The defense of the accused was that at the time he is charged with violating the statute, he was not in the junk business for himself, having previously sold out to his former partner, Jacob Protejal; and that he was, at the time of the alleged purchase of brass, acting as a clerk for hire.
HEISEL, J. (charging the jury). Gentlemen of the jury: In this case the state charges that the defendant, Morris Checkver, Is a junk dealer in this city, and as such junk dealer, did on the twenty-seventh day of April of this year, purchase from one Joseph Murphy certain pieces of brass, and did not enter in a book furnished for that purpose, the information designated in section 1200 which is as follows:
"Every person, corporation or firm conducting the business of a pawnbroker or junk dealer shall keep a book or books in which shall be fairly written in English at the time of each loan or purchase an accurate account and description of the goods, articles or things pawned, pledged or purchased, the amount of money loaned thereon or the amount of money paid therefor, the time of pledging or purchasing the same and the rate of interest to be paid on such loan, together with the description of the person pawning or pledging or selling such goods, articles or things, including the color of his complexion, color of eyes and hair and his or her stature and general appearance. The said book or books shall be prepared and furnished to such person, corporation or firm so conducting the business of a pawnbroker or junk dealer by the police department of the city of Wilmington at the expense of such person, corporation or firm so conducting the business of pawnbroker or junk dealer."
This section makes it the duty of a junk dealer in this city, to enter in a book supplied by the police department of the city of Wilmington, fairly written in English, at the time any property is purchased by them, an accurate account and description of the goods and articles purchased, the amount paid for them, together with a description of the person selling the goods or articles, including the color of his complexion, color of eyes and hair and his stature and general appearance.
It is incumbent upon the state to show to your satisfaction beyond a reasonable doubt all the essential elements of the offense charged; that is, that the defendant, Morris Checkver, was, at the time of the alleged offense, a junk dealer in the city of Wilmington, that as such, he purchased from Joseph Murphy certain pieces of brass, and did not make the entries in such a book as required by section 1200 of the Code. If you are so satisfied by the evidence produced in the case, your verdict should be guilty.
The defendant does not deny purchasing the brass from Joseph Murphy, nor does he admit it, but claims that if he bought it, he was acting for one Jacob Protegal and was not himself a junk dealer; we say to you, gentlemen, that before convicting the defendant you must be satisfied that, at the time of purchasing the brass, he was a junk dealer.
We also charge you that if you are satisfied from the evidence that the defendant and Jacob Protegal were partners in the junk business, at the time of the alleged offense, that such partnership would constitute the defendant a junk dealer under the terms of section 1200, Revised Code of 1915, and he would be personally liable for any violation of the terms of said section.
You have the evidence that has been produced by the state, as well as that produced by the defendant. After considering it carefully, if you have a reasonable doubt of the guilt of the prisoner, he is entitled to the benefit of such reasonable doubt and should be acquitted. A reasonable doubt means a reasonable doubt, not a mere vague, whimsical or fanciful doubt, but a real doubt.
In considering the evidence, we want to say further to you, that where the evidence is conflicting, as it is in this case, you should reconcile it if you can, but if you cannot reconcile it, then you should believe those witnesses whom you deem most worthy of belief, taking into consideration in arriving at your conclusion, their interest, bias or prejudice, if any, and also their opportunity of knowing that about which they are testifying.
It is for you to say whether or not the evidence produced has satisfied you beyond a reasonable doubt of the guilt of the defendant.
Verdict, guilty with a recommendation of mercy.