Summary
In Pettus v. State, 200 Miss. 397, 27 So.2d 536, the Court held: "The word `knowing' in its relation to receiving stolen goods means that, if a person has information from facts which should convince him that property has been stolen, or which should lead a reasonable man to believe that property has been stolen, then in a legal sense he knew it."
Summary of this case from Jones v. StateOpinion
No. 36200.
October 14, 1946.
1. RECEIVING STOLEN GOODS.
Evidence warranted conviction for knowingly receiving stolen automobile tires (Code 1942, sec. 2249).
2. CRIMINAL LAW.
Instruction to find defendant guilty if jury were satisfied "from the facts and circumstances" that defendant knowingly received stolen goods was erroneous for failure to state that jury must be satisfied "beyond a reasonable doubt," but was not fatally erroneous, where another instruction supplied the missing element (Code 1942, sec. 2249).
3. RECEIVING STOLEN GOODS.
The word "knowing" in its relation to receiving stolen goods means that, if a person has information from facts which should convince him that property has been stolen, or which should lead a reasonable man to believe that property has been stolen, then in a legal sense he knew it (Code 1942, sec. 2249).
4. CRIMINAL LAW. Receiving stolen goods.
Instruction that in considering defendant's guilty knowledge, the jury should consider the fact that nature of goods would indicate to reasonable man that goods were stolen, and that presence of marks or brands sufficient to give defendant knowledge of ownership gave rise to presumption that defendant knew that goods were stolen, was fatally erroneous as respects the presumption and as a charge on the weight of evidence and as invading province of jury and as being argumentative and improperly stressing particular items of the evidence (Code 1942, sec. 2249).
5. CRIMINAL LAW.
Where some evidence was direct and some was circumstantial, instruction authorizing conviction based on circumstantial evidence without requiring jury to exclude every other reasonable hypothesis than guilt before a conviction could be had was not error.
APPEAL from the circuit court of Holmes county, HON. S.F. DAVIS, Judge.
Jackson Young, Joe H. Daniels and Milton Mitchell, all of Jackson, and P.P. Lindholm, of Lexington, for appellant.
The court erred in overruling defendant's (appellant's) motion to exclude the State's evidence and direct a verdict of not guilty for the defendant, because the evidence for the State was insufficient to make out a case, and he further contends that the court erred in refusing to grant a peremptory instruction for the defendant, as requested by the defendant at the close of the whole case, directing the jury to return a verdict of not guilty, because the evidence is wholly insufficient to sustain a verdict of guilty.
Algheri v. State, 25 Miss. 584; Hardy v. State, 177 Miss. 727, 172 So. 131; Hazlehurst v. Byrd, 101 Miss. 57, 57 So. 360; Hogan v. State, 127 Miss. 407, 90 So. 99; Jennings v. State, 118 Miss. 619, 79 So. 814; Johnson v. State, 186 Miss. 405, 191 So. 127; McComb City v. Hill, 100 Miss. 193, 56 So. 346; Miller v. State, 99 Miss. 226, 54 So. 838; Pickle v. State, 151 Miss. 549, 118 So. 625; Sorrells v. State, 130 Miss. 300, 94 So. 209; Stansberry v. State, 98 Miss. 406, 53 So. 783; Nalls v. State, 128 Miss. 277, 90 So. 892; Warren v. State, 166 Miss. 284, 146 So. 449; Williams v. State, 95 Miss. 671, 49 So. 513; 45 Am. Jur. 385, Sec. 12; 23 C.J.S. 816, Sec. 1252.
The court erred in overruling the defendant's motion for a new trial because the verdict of the jury is clearly contrary to the overwhelming weight of the evidence.
Conway v. State, 177 Miss. 461, 171 So. 16; Justice v. State, 170 Miss. 96, 154 So. 265; Sones v. State (Miss.), 155 So. 188; Jolly v. State (Miss.), 174 So. 244; 45 Am. Jur. 385, Sec. 12; 53 C.J.S. 503, Sec. 12; 88 R.C.L. 83, Sec. 188; Clark Marshall on Crimes (3 Ed.), Sec. 380, p. 508.
The court erred in granting the second instruction for the State, in that it does not set out therein that the jury must believe beyond a reasonable doubt that the defendant is guilty of the crime charged.
Brown v. State, 72 Miss. 95, 16 So. 202; Burt v. State, 72 Miss. 408, 16 So. 342; Drummond v. State, 103 Miss. 221, 60 So. 138; Hammond v. State, 74 Miss. 214, 21 So. 149; Hawthorne v. State, 58 Miss. 778; Hemphill v. State (Miss.), 16 So. 491; Murphy v. State, 89 Miss. 827, 42 So. 877; Powers v. State, 74 Miss. 777, 21 So. 657; Webb v. State, 73 Miss. 456, 19 So. 238; Johnson v. State (Miss.), 16 So. 494; Bennett v. State, 127 Fla. 759, 173 So. 817; Broddy v. Kansas City, etc., R. Co., 47 Mo. App. 519, 523; 23 C.J. 837, Sec. 1267; 56 C.J. 130; Webster's New International Dictionary (2 Ed.), "satisfied."
The court erred in granting the third instruction for the State, in that (1) it sets out that the test is whether a reasonable man would have known that the tires were stolen, and (2) it further sets out therein a presumption of guilt, which is a violation of the due process clauses of the Constitutions of the United States and of the State of Mississippi.
Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200, 317, 28 So. 956; Crowell v. State, 195 Miss. 427, 15 So.2d 508; Francis v. State, 154 Miss. 176, 122 So. 372; Frank v. State, 67 Miss. 125, 6 So. 842; Harrington v. Yazoo M.V.R. Co., 145 Miss. 887, 111 So. 444; Harris v. State, 61 Miss. 304; Renfrow v. State, 154 Miss. 523, 122 So. 750; Sanford v. State, 155 Miss. 295, 124 So. 353; Sartorious v. State, 24 Miss. 602; State v. Tingle, 103 Miss. 672, 60 So. 728; Code of 1942, Sec. 2249; 45 Am. Jur. 385, Sec. 2; 53 C.J. 503, Sec. 2; 88 R.C.L. 83, Sec. 88; Clark Marshall on Crimes (3 Ed.), Sec. 380, p. 508; Kelly's Criminal Law Procedure, Sec. 684.
The court erred in granting the fourth instruction for the State, in that it asks for a conviction based on circumstantial evidence, and yet it fails to include therein that further necessary element, that the jury must exclude every other reasonable hypothesis than that of guilt.
Algheri v. State, supra; Drummond v. State, supra; Hardy v. State, supra; Hogan v. State, supra; Miller v. State, supra; Nalls v. State, supra; Sorrells v. State, supra; Warren v. State, supra; Williams v. State, supra; 23 C.J.S. 816, Sec. 1252.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant's own testimony is sufficient to show guilty knowledge of the theft of the tires for he himself testified that Perkins (whom he had met for the first time that night) told him where the tires were hidden and that he could get them if he wanted them, that the tires were concealed in a pine thicket in Madison County some distance from where they were stolen in Lexington, Holmes County. Appellant also admitted going with Wall and Perkins and Gwin Fowler to Mrs. King's place and that he permitted her to make out her check to him for the purchase price of the tires and he endorsed the check given by her in payment for the tires, and that this transaction occurred late at night at a time and under conditions that would normally create suspicion. There is the strongest possible case against the appellant as to his guilty knowledge and participation in the transaction.
Crowell v. State, 195 Miss. 427, 15 So.2d 508; Code of 1942, Sec. 2249.
See also Claxton v. State, 185 Miss. 426, 187 So. 877; Golden v. State, 183 Miss. 289, 184 So. 324.
In a prosecution for receiving stolen goods knowing them to have been stolen, the unexplained possession of the property stolen is a circumstance for consideration of the jury in connection with other facts indicative of guilt; and where such other facts were accompanied by the recent possession of stolen property, they would do sufficient for the jury to convict.
Crowell v. State, supra.
Where instructions when taken as a whole furnish the jury a proper guide, they were sufficient, notwithstanding some of the instructions, if taken alone, would be inaccurate and erroneous.
Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361; Cox v. Dempsey, 176 Miss. 678, 171 So. 788; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821.
See also Mississippi Digest, vol. 14, title "Trial," key No. 295, and vol. 5, title "Criminal Law," key No. 822.
It is contended that the court erred in granting the third instruction for the State in that (i) it sets out that the test is whether a reasonable man would have known that the tires were stolen, and (2) it further sets out therein a presumption of guilt, which is a violation of the due process clauses of the Constitution of the United States and of the State of Mississippi. This instruction follows the law often announced in this State and is a correct instruction. In fact, the jury were told therein that if the property is shown to have been recently stolen or if the property is of such nature that would indicate, or which to a reasonable man would indicate, their being stolen, or if the property bore marks and brands sufficient to bring to the defendant's mind the knowledge of their ownership, when received by him, then it is a presumption that the defendant had knowledge of their being stolen property. The proof clearly shows that the tires were so marked as to indicate their ownership; and all of the circumstances are such as would lead any reasonable man to believe that the tires were stolen.
The fourth instruction for the State which asks for a conviction based on circumstantial evidence was not error in that it failed to include therein "that further necessary element that the jury must exclude every other reasonable hypothesis than that of guilt." This case is not dependent upon circumstantial evidence alone and the principle mentioned does not apply to the facts in this case. There is, in fact, no element of good faith shown by appellant in dealing with the tires, or buying them, under the circumstances disclosed by this record. If this case depended entirely upon circumstantial evidence, then the rule contended for would be applicable for the reason that mere circumstances, apart from human action or activities and personal testimony, depend for their forceful evidence on the fact that only one reasonable conclusion could be drawn from such circumstances. But here there is direct testimony that, when Wall and Perkins went to appellant's place and asked him if he was interested in the tires or wanted them, he stated "Hell, yes," and that he took the tires and paid Perkins for them and placed the tires, not in his business storage room, but in the bedroom and under the bed until later in the night, at an hour when most, if not all, honest people are sleeping. The evidence further shows that he loaded them in his truck a few hours later that night and proceeded to dispose of them to persons he thought would probably buy them.
Whether the witnesses who testified that the appellant bought the tires from Perkins were telling the truth was a question for the jury alone; but the circumstances corroborated the positive proof and are sufficient to show that the appellant received the tires, knowing them to have been stolen. It would be remarkably strange for a man dealing in tires not to know the government restrictions on their sale and that tires were rationed under government control in order to give every person an opportunity to secure needed tires at a reasonable price. Appellant must have known from the circumstances that Perkins was not selling the tires in a legal and legitimate manner. As Perkins was an entire stranger to appellant and appellant had known Wall only a short time, and as he did not ask them any questions as to how they came into possession of the tires, it is most reasonable to assume that appellant bought the tires, knowing them to have been stolen, and his subsequent conduct in hiding or disposing of them strongly supports the theory of the State that he knew they were stolen tires.
Argued orally by Forrest B. Jackson, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was indicted in the Circuit Court of Holmes County on a charge of knowingly receiving certain stolen automobile tires in violation of Section 2249, Code 1942. He was convicted, sentenced to a term of three years in the state penitentiary, and appealed here.
The assignment of errors, among other grounds, includes complaints that the court erred in overruling appellant's motions to exclude the State's evidence at its conclusion; to give him a peremptory instruction at the end of all the evidence; and to grant him a new trial because of such overruling of said motions. We think the court was correct in overruling all of these motions. The jury was justified in returning a verdict of guilty on the evidence, — at least, we cannot say it was against the great overwhelming weight of the evidence or manifestly wrong.
A man named Thurmond operated a store in Lexington dealing in tires, as well as being connected with and interested in several other business enterprises there. On the morning after the tires were stolen, on January 31, 1945, he was informed that his store had been burglarized. Upon taking an inventory he ascertained that sixteen Davis tires were missing. On them were serial numbers, the name of the tires, as well as the name and address of the merchant's business house, as consignee. He reported the theft to the sheriff and the local Rationing Board, to which board, of course, he had then to account for all tires leaving his place of busniess. Ultimately, all the tires were recovered, but from some of them the serial numbers had by that time been erased. Some were returned by the sheriff, and about ten days after the burglary, one J.R. Ables, Jr., returned to Mr. Thurmond eight tires, at the instance of appellant.
Before the eight tires were brought to Mr. Thurmond by Mr. Ables, Jr., and after appellant had been arrested and released from jail on bond, he went to the home of Mr. Thurmond and offered to "see what he could do (about getting the tires back) and in an hour and a half they brought them back." Further, when appellant made this offer to Mr. Thurmond he was under the impression charges had been filed with the local OPA. Mr. Thurmond informed appellant that he "was interested only in getting the tires back." This conversation was a circumstance from which appellant argues that the jury could have deemed him participating with operators of a black market in tires more justifiably than finding him guilty of receiving stolen tires, knowing them to have been stolen. He contends that the trial court erred in granting the State a certain instruction, which will be discussed, post, limited to reasonable doubt, and not including therein that the jury "must in its consideration exclude every other reasonable hypothesis than that of guilt." The potency of this contention is impaired heavily by the fact that the consignee was a prominent business man in Lexington, interested in several important commercial enterprises, and the name and address of his store were on each tire, as well as the shipping point and date of shipment, when stolen and brought to appellant's place of business.
The events culminating in the theft of these tires, so far as is material to our discussion, are that one Wall operated a filling station in Durant at the time, but did not deal in tires. A former convict named Perkins, from St. Louis, whence also had come Wall a few months earlier, came to Wall's filling station and said he wanted to buy an old car there, which was for sale. Wall pointed out that the tires on it were bad, but said it could be completely re-tired for about $85. Perkins told Wall not to worry about tires, and asked Wall to take a trip with him, which Wall agreed to do if there were enough in it for him. Wall picked up Perkins about six o'clock that evening, driving to Lexington in Wall's truck. They separated after reaching Lexington, but got together again with some whiskey. They went to the picture show, and while there Perkins obtained the keys of Wall's truck from him, and when the show was over, Wall went out to his truck, and, in his words, "I looked in the truck and the truck was loaded with tires in there." Mirabile dictu! He, however, evinced no curiosity about them. They then, at Perkins' suggestion, went to the place of John Pettus, the appellant here, on Highway No. 51. Upon arriving there they did not drive up to the front entrance, but went around to the side of the building, about eleven o'clock at night, and put the tires under the bed in a back bedroom occupied by a woman employee, Miss Falkner, although there was a storeroom for such property. She later testified for the State in corroboration of the testimony of Wall.
Appellant, according to the State's testimony, when asked by them if he wanted some tires, replied: "Hell, yes, I want those tires. Where are they?" According to appellant, he replied that he did not want them but knew somebody in Yazoo County who did. Yet, in the course of subsequent driving around the countryside in appellant's Buick that night between eleven o'clock p.m. and three o'clock a.m., the State offered testimony as follows:
"Q. Where did you go then? A. The conversation came up about getting more tires.
"Q. What was that conversation? A. Bill (Perkins) said it wouldn't be no good to wait until another time and they said they were going back and get some more tires.
"Q. That conversation was between John Pettus and Bill Perkins? A. Yes, sir."
However, they did not go after more tires, as the witness said "They got froggy."
It must be borne in mind that appellant's acquaintance with Wall was not extensive, and he had never seen Perkins before that night.
Just before the start of this midnight tour appellant and Perkins loaded some of the tires in appellant's Buick car, and then appellant, Perkins, Wall, and a Miss Gwin Fowler drove to Coxburg, where four tires were left at the home of appellant's mother. Here some money passed and some was to be paid later. Then appellant and these three companions at that late hour of the night continued into Yazoo County, twelve or fourteen miles from appellant's place of business to the home of a Mrs. King, where they delivered four of the tires to her, she being the person, Wall said, who wanted some tires. These she later turned over to the sheriff. She did not have the price of the tires in cash and made out a check payable to appellant, over his protest, stating she did not know the others. This check he endorsed and turn over to Wall and Perkins, and later it served as a clue leading to the solution of the case. Other sales were also made on this trip.
Miss Falkner, under whose bed at appellant's place the tires were placed that night contrary to all previous precedent, stated that upon their return to appellant's establishment at three o'clock a.m., "He took the tires and left."
"Q. At three o'clock in the morning? A. Yes, sir.
"Q. Who is he? A. John Pettus and I helped him.
"Q. John Pettus and you put about half a dozen tires at three o'clock in the morning in John Pettus' car? A. Yes, sir.
"Q. Which way did he go? A. I don't know, I went back to bed."
Appellant's explanation about these particular tires, about which Miss Falkner was testifying, was that he first saw Perkins after that night, when he came by appellant's house one night later, in a two-door Chevrolet car. The sheriff was there hunting for him. Appellant said: "I did not recognize him," and neither did the sheriff. At another time during that same day Perkins told him where he had hid the tires. According to the appellant, "He said: `Well, I am going up the line, if you need those tires, they are in the pine thicket and I will be seeing you.' I said: `I don't need them but if I do, I will go get them.'"
Appellant further testified in his own behalf that he did not know where Perkins and Wall got the tires. In answer to a question from his attorney, he said there were black markets in Mississippi. That was all he said about it, simply that there were such markets in Mississippi. He further denied knowing that the tires were stolen, and receiving them. Appellant's brother, Charles, testified that he went to the pine thicket, which was in Madison County, on information given him by appellant, and there retrieved the tires. It will be remembered that Perkins was a transient and a stranger to that part of the country, and had already fled the scene.
Appellant insists we should reverse and remand the case because the trial court gave the State three erroneous instructions, which we will discuss in their order in the record.
State's instruction No. 2 is as follows: "The jury are instructed that guilty knowledge is not often capable of direct proof, that it is a conclusion to be drawn from all the facts and circumstances in the case, and if the jury are satisfied from the facts and circumstances that the defendant received or bought the goods and converted them to his own use when he had a knowledge, or had good reason to believe they were stolen property, then they will find guilty as charged."
Appellant says this instruction is fatally erroneous, because it failed to say that the jury must be "satisfied beyond a reasonable doubt," but authorized the jury to find appellant guilty if the jury were merely "satisfied from the facts and circumstances." He cites Drummond v. State, 103 Miss. 221, 60 So. 138, where a very similar instruction was given the State, and where we said "The giving of this instruction was clearly erroneous; but we think, from all the testimony in this case, including that of the defendant himself, no honest and reasonable jury could have rendered any other verdict than the one rendered in the case. The case is therefore affirmed." We think here the giving of this instruction was error, but not a reversible error.
"Satisfied" means a great many things. It is a word of considerable expansiveness, and not as definite and precise as "beyond a reasonable doubt." "Satisfied" means "to free from anxiety, doubt, perplexity, suspense, or uncertainty; to free the mind from doubt and uncertainty; to give assurance to; to relieve from all uncertainty or doubt; to set at rest the mind of, upon a given proposition. To satisfy one's self is to believe." 56 C.J. 130. It will be seen from such definition that the instruction could conceivably be considered metriculously correct, but it is a word of too general and diffusive significance, while our familiar phrase "beyond a reasonable doubt" has a specific and concise connotation and application. It is difficult of definition. Generally, definition is simply substitution of phraseology and there is no alternative, efficient substitute for "beyond a reasonable doubt." Despite the futility of efforts correctly to define it, the mind perceives its meaning.
We agree that the instruction is erroneous, but not fatally erroneous here, especially in view of an instruction granted appellant which supplements the State's instruction by supplying the missing element, "beyond every reasonable doubt," in haec verba. This instruction given defendant is as follows: "The court charges the jury for the defendant that the burden of proof is upon the State to establish, to the satisfaction of the jury beyond every reasonable doubt, that the defendant is guilty as charged; and if the evidence fails in any respect to satisfy your minds and consciences, you must acquit the defendant by a verdict of Not Guilty." This assignment of error is, therefore, overruled.
The next error of which complaint is made involves the State's instruction No. 3, which is in the following language: "The Court instructs the jury that in considering the guilty knowledge of the defendant, they should consider the facts of their being stolen property, and the character of the goods received by him, whether they bore marks or brands indicating their ownership, and, if the property is shown to have been recently stolen, that they were of a nature which would indicate, or from which to a reasonable man would indicate, their being stolen, or if they bore marks and brands sufficient to bring to the defendant's mind the knowledge of their ownership, when received by him, then it is a presumption that the defendant had knowledge of their being stolen property."
The Attorney General strives to justify this instruction by urging it has often been granted the State in other cases, and also citing Crowell v. State, 195 Miss. 427, 15 So.2d 508. The appellant argues it is fatally erroneous because it makes the test whether or not a reasonable man would have known that the tires were stolen; and because it "sets out therein a presumption of guilty, which is a violation of the due process clauses of the Constitutions of the United States and the State of Mississippi." In this connection, as to the reasonable-man feature, a rather awkward and inept way to express what the instruction probably intended, we have heretofore decided that the word "knowing" in its relation to receiving stolen goods means that, if a person has information from facts and circumstances which should convince him that property has been stolen, or which should lead a reasonable man to believe that property had been stolen, then in a legal sense he knew it. Francis v. State, 154 Miss. 176, 122 So. 372, 373. See also Sartorious v. State, 24 Miss. 602; and Frank v. State, 67 Miss. 125, 6 So. 842.
As to the "presumption" feature of the instruction, it is clearly and fatally erroneous. In the Crowell case, supra [ 195 Miss. 427, 15 So.2d 511], we said ". . . we conclude that it is never proper, in a case for receiving stolen goods knowing them to have been stolen, for the jury to be instructed, in effect, that the unexplained possession alone of such recently stolen property is either a circumstance from which guilt may be inferred or that such possession is a circumstance strongly indicative of guilt which will justify, support, or warrant a verdict for the state, where such possession is unaided by other proof tending to show that the accused received such property knowing it to have been stolen."
This part of the instruction is also a charge upon the weight of the evidence, and invades the province of the jury, and lures them from their duty to acquit the defendant unless they believe from the evidence beyond a reasonable doubt that he is guilty as charged. See also in this connection Sartorious v. State, supra. The instruction is also bad, because it is argumentative and improperly stresses particular items of the evidence, thus unfairly directing the attention to the jury to the matter so emphasized. Even though such evidence was competent, relevant, and important on the issue of guilt or innocence of accused, and could be argued against the defendant by the district attorney, it was improper for the court to single it out, as was done here. The case will have to be reversed and remanded for the giving of this instruction.
Appellant also assigns as error the giving of the fourth instruction to the State as follows: "The court instructs the jury that it is not incumbent on the state to show by the evidence in order to convict the defendant, that the defendant acknowledge he received the goods, knowing they were stolen, or to prove that the parties from whom he received the same told him that they had previously stolen the goods charged; it is sufficient if all the facts and circumstances testified to in the case satisfy the minds of the jury, to the exclusion of every reasonable doubt, that the defendant knew or had good reason to believe the goods were stolen property, and if the jury believe this to a moral certainty arising out of the evidence, and beyond every reasonable doubt, they should convict the defendant."
The challenge to this instruction is that it authorizes a conviction based on circumstantial evidence, but fails to include therein the necessary element that the jury must exclude every other reasonable hypothesis than that of guilt. The burglary, as well as the identity of the tires involved, was proven by direct testimony, while the receiving of them by appellant, knowing they were stolen, and his fraudulent intent, were proven largely by circumstantial evidence. In his brief, appellant contends that the case is entirely circumstantial, and cites several cases, typical of which is Miller v. State, 99 Miss. 226, 54 So. 838, where the evidence was entirely circumstantial. It was not so here, nor is it unusual for criminal cases to contain some direct evidence and some circumstantial evidence. In such cases, as here, the above instruction is proper. It is only in cases, as a general rule, where the evidence is entirely circumstantial that the jury should be required to exclude every other reasonable hypothesis than guilt before a conviction can be had. Unaided, a jury could not analyze and classify the evidence, and the Court would find itself in difficulties if it attempted such an exacting undertaking for the purpose of aiding the jury to do so, and applying the differing rules to the evidence thus assorted, in a single instruction. We think the instruction under the conditions of this case was correct. The rule for which appellant contends here applies only to cases where the evidence is entirely circumstantial.
However, for the error in giving the State Instruction No. 3, supra, the case is reversed and remanded.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.