A-3927887.
Decided by Board October 27, 1955.
Crime involving moral turpitude — Receiving stolen goods, New Jersey Revised Statute 2:164-1.
Violation of New Jersey Revised Statute 2:164-1 is a crime involving moral turpitude. The ruling case law interpreting that statute does not change the common law rule that knowledge is an essential element of the crime of receiving stolen goods. While the statute eliminates the necessity of showing guilty knowledge by direct proof, it merely exacts a rule of evidence by placing the burden of going forward on the accused person.
DEPORTABLE:
Act of 1952 — Section 241 (a) (4) — At any time after entry convicted of two crimes involving moral turpitude, to wit: Breaking, entering, larceny, and receiving; breaking, entering, larceny, and receiving.
BEFORE THE BOARD
Discussion: This case is before us on our own motion. We have been requested to reconsider our opinion of September 16, 1955, wherein we dismissed respondent's appeal from an order entered by the special inquiry officer on July 5, 1955, directing his deportation on the criminal charge stated above. Counsel in his brief submitted on appeal argues that the charge stated in the warrant of arrest is not sustained as a matter of law. Our opinion of September 16, 1955, made no reference to the points of law raised by counsel. We will consider them in this opinion. It is noted in passing that counsel's brief was received some 12 days subsequent to the filing of the appeal on July 27, 1955.
The record relates to a native of Salerno, Italy, male, married, who last entered the United States at the port of New York on November 1, 1923, ex SS. Patria at which time he was accompanied by his mother. He was admitted for permanent residence. Exhibit 6 establishes that respondent was convicted on October 2, 1939, on a plea of guilty in the Essex County, New Jersey, Court of Special Sessions of the crime of breaking, entering, larceny, and receiving for which, on October 25, 1939, he was sentenced to imprisonment in the New Jersey Reformatory at Annandale, New Jersey. This exhibit also establishes that respondent was convicted on December 3, 1942, in the Essex County, New Jersey, Court of Quarter Sessions on a plea of non vult on two separate indictments charging the crime of breaking, entering, larceny, and receiving for which on December 15, 1942, he was sentenced to imprisonment in the New Jersey reformatory at Rahway, New Jersey, on each of the two indictments, said sentences to run consecutively. The respondent has been found subject to deportation under section 241 (a) (4) of the Immigration and Nationality Act in that, at any time after entry he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: Breaking, entering, larceny, and receiving; breaking, entering, larceny, and receiving.
The legal issues raised by counsel stem from the 1942 convictions referred to above. The records of conviction do not specify the particular offense or offenses set forth in the indictments of which respondent was convicted.
Counsel argues that since breaking and entering coupled with larceny and receiving stolen goods are separate and inconsistent offenses, repugnant to each other, respondent could not at the same time be the thief and the receiver of the stolen goods. It is his contention that under the circumstances respondent may have been convicted solely on the count relating to receiving stolen goods. He further contends that if this be the case then under the New Jersey statute defining receiving stolen goods and authorities interpreting that statute, respondent was not convicted of a crime involving moral turpitude because actual guilty knowledge is not a necessary element of the offense. In other words it is counsel's contention that under New Jersey Revised Statute 2:164-1, as amended in 1938 (Act approved June 14, 1938 — Chapter 348, S. 1, P. 875) mere proof of a theft of an article, and subsequent possession of said article by the accused without any showing of actual guilty knowledge is all that is required to convict. Counsel in support of his argument cites precedent decisions of this Board which hold in effect that unless the statute under consideration requires knowledge on the part of the receiver that the goods were obtained unlawfully the offense defined does not necessarily involve moral turpitude.
Counsel in his brief sets forth as the statute under which respondent was convicted, Title 2A: section 139, paragraph 1. This statute was enacted by the Legislature of the State of New Jersey in 1951 (Chapter 344) and is a revision of Title 2 of the Revised Statutes of 1937, as amended. The new title became effective on January 1, 1952. Respondent, however, was convicted under Revised Statutes 2:164-1 which is set forth in the appendix.
Matter of K----, A-3565857 (56113/804), 2 IN Dec. 90 (B.I.A., 1944); Matter of G----, 56158/190, 2 IN Dec. 235 (B.I.A., 1945).
The only issue presented by counsel's brief which requires reconsideration is whether the crime defined by New Jersey Revised Statutes 2:164-1 ( supra)fn1 involves moral turpitude. Counsel has cited several New Jersey cases which he argues support his position. Counsel quotes extensively from the case of State v. Vigorito which he has failed to cite in his brief. This case is reported at 65 Atl. 2d 841 (Supreme Court of New Jersey, 1949).
State v. Verona, 52 N.J.L.R. 389, 108 Atl. 250 (1919); State v. Shelbrick, 33 N.J. Super. 7 (1954), 109 Atl. 2d 17; State v. Palmer, 8 N.J. Misc. 664, 151 Atl. 365 (1930).
Before considering counsel's argument we will review the legislative history of New Jersey Revised Statutes 2:164-1 ( supra).fn1 The crime of receiving stolen goods under the Crimes Act of 1898 required proof of three elements to establish guilt: (1) that the articles were stolen, (2) that the accused received them, and (3) that at the time of receiving them he knew that they were stolen. The legislature in 1938 (P.L. 1938, chapter 348, section 1, supra)fn1 eliminated the necessity of showing guilty knowledge by direct proof. It provided in new paragraphs that if the accused is shown to have had possession of the goods or articles within one year from the date of the theft, such possession shall be deemed sufficient evidence to authorize conviction unless the receiver of the goods or articles shows to the satisfaction of the jury that he comes within the defenses set forth in the statute. Obviously the purpose of the amended statute is to dispense with affirmative proof of guilty knowledge and to substitute proof of possession by the buyer within one year of the theft, from which guilty knowledge may be inferred ( State v. Lisena, 129 N.J.L. 569, 571; 30 Atl. 2d 593, affirmed, Err. App. 1943, 131 N.J.L. 39; 34 Atl. 2d 407).
P.L. 1898 — chapter 235, section 166, page 839.
We do not agree with counsel that the New Jersey statute here under consideration eliminates the common law rule requiring proof of guilty knowledge on the part of the accused. The leading case on this issue is State v. Giordano, 121 N.J.L. 469, 3 Atl. 2d 290 (1939). The Supreme Court of the State of New Jersey held in that case that the statute merely enacts a rule of evidence. It does no more than indicate the manner in which a presumption of guilt from proof of possession of stolen property, within one year from the date of the theft, may be rebutted. It does not require the defendant to establish his defense and does not shift the burden of proof. It merely puts the burden of going forward with the evidence on the accused person, but if, at the close of the case, the jury have a reasonable doubt as to the guilt of the defendant, they must acquit. This view has been adopted by the Court of Errors and Appeals for the State of New Jersey, the court of last resort in that state ( State v. Lisena, ( supra)).
This same issue was before the court in State v. Todaro, 131 N.J.L. 430; 37 Atl. 2d 73 (1944). The court said at page 74:
* * * The statute in this particular feature simply laid down a rule of evidence by specifying a presumption arising from possession of stolen goods within a time limit. It is claimed that it requires a jury to convict unless the presumption is overcome; but this is far from the fact. The language is that possession within a year `shall be deemed sufficient evidence to authorize conviction' unless one or more specified defenses be established. It is now argued that there are many other methods of lawful acquisition of chattels which are not specified in the statute, and a considerable list of them is presented in the brief. But on this feature of the argument we need go no further at this time than to say that defendant made and makes no claim to have acquired the property, consisting of automobile tires, in any other way than by purchase from a total stranger in the small hours of the morning. [Emphasis supplied.]
Counsel relies upon the case of State v. Palmer ( supra).fn3 The court in that case specifically pointed out that the accused offered no evidence to show that the property was honestly acquired.
The case of State v. Vigorito, ( supra), quoted extensively by counsel was not concerned directly with the issue before us. Vigorito was convicted of receiving stolen goods and appealed from a judgment of the appellate division of the Superior Court of the State of New Jersey affirming his conviction. Two points were urged for reversal. The point pertinent here urged that the trial judge committed error in that he charged the jury using the language of the first paragraph of the statute ( supra)fn1 without alluding to the remaining paragraphs setting up statutory presumptions arising from unexplained possession of stolen goods, particularly subparagraph (b) which refers to the amount paid for the goods or chattels. The court noted that the charge to the jury was more inclusive than the statute required. It specifically charged the jury that the state must prove beyond a reasonable doubt that the goods were stolen and that the defendant in receiving them knew that they were stolen. The court in its opinion said:
In so doing the court deprived the state of the benefit of the presumption provided for in the present statute (R.S. 2:164-1, N.J.S.A.), but the defendant was correspondingly benefited thereby. As was said of a similar situation in State v. Block, 119 N.J.L. 277, 281, 196 Atl. 225, 228, affirmed, Err. App. 1938, 121 N.J.L. 73, 1 A. 2d 408, `if there was error here it was all in favor of the defendant,' and consequently he suffered no prejudice therefrom.
Counsel in his brief did not quote the full text of this sentence, omitting the reference "but the defendant was correspondingly benefited thereby."
The court found no harmful error and the judgment of the lower court was affirmed.
The ruling case law interpreting New Jersey Revised Statute 2:164-1 ( supra)fn1 in our opinion does not change the common law rule that knowledge is an essential element of the crime of receiving stolen goods. The statute merely enacts a rule of evidence and does not affect the substantive law. The statute does not make a conviction mandatory unless the presumptions set forth therein are overcome. The statute merely authorizes conviction unless one or more of the specified defenses be established. Guilty knowledge may be inferred where the accused received stolen property under circumstances that would satisfy a man of ordinary intelligence and caution that they had been stolen ( State v. Block, ( supra)). Under these circumstances, the crime involved moral turpitude. Our order of September 16, 1955, will be affirmed.
Order: It is ordered that upon reconsideration the order entered September 16, 1955, is hereby affirmed.
APPENDIX
Section 1547. Any person who shall receive or buy any goods or chattels, or choses in action or other valuable thing whatsoever, that shall have been stolen from any other person or taken from him by robbery or otherwise unlawfully or fraudulently obtained, or converted in any manner contrary to any of the provisions of this subtitle, whether such stealing or robbery shall have been committed either in this state or in some other jurisdiction, and whether such goods, chattels, choses in action, or other valuable thing shall be received or bought from the thief, robber, or person so obtaining, taking, or converting them, or from any other person, or shall receive, harbor or conceal any thief or robber knowing him to be so, shall be guilty of a high misdemeanor.
If the person accused is shown to have or to have had possession of such goods, chattels, choses in action, or other valuable thing within one year from the date of such stealing, robbery or unlawful or fraudulent obtaining, such possession shall be deemed sufficient evidence to authorize conviction, unless such person show to the satisfaction of the jury either: [Emphasis supplied.]
(a) That the goods or chattels or choses in action or other valuable thing were, considering the relations of the parties thereto and the circumstances thereof, a gift to him and not received by him from a minor under the age of sixteen years; or
(b) That the amount paid by him for the goods or chattels or choses in action or other valuable thing represented their fair and reasonable value and they were not received by him from a minor under the age of sixteen years; or
(c) That when he bought the goods or chattels or choses in action or other valuable thing he knew of his own knowledge or made inquiries sufficient to satisfy a reasonable man, that the seller was in a regular and established business for dealing in goods, chattels, choses in action or other valuable thing of the description of the goods purchased; or
(d) That when he received or bought the goods or chattels or choses in action or other valuable thing, he simultaneously with or before the receipt or sale, reported the transaction to the police authorities of the municipality in which he resided at the time of such receiving or buying and that such goods or chattels or choses in action or other valuable thing were not received by him from a minor under the age of sixteen years; or
(e) That before he received or bought the goods or chattels or choses in action or other valuable thing from a minor under the age of sixteen years, he first communicated with the police authorities of the municipality in which he resided and obtained their approval for the purchase, barter, exchange or receipt of possession of such goods, chattels, choses in action or other valuable thing. (R.S. 2:164-1, as amended by L. 1938, c. 348, s. 1, p. 875, approved June 14, 1938, effective immediately.)