State v. Lewis , 117 W. Va. 670 ( 1936 )

The two dissenting opinions filed herein, particularly that filed by Judge Hatcher which relies upon a number of authorities as sustaining its conclusion, make it desirable that there should be some further elucidation of the position taken by the majority of the court, as I understand that position.

Under the old statute, referred to in the majority opinion, it was made an offense to receive stolen goods knowing them to have been stolen. There is no dispute but that under statutes of this sort, the overwhelming weight of authority is to the effect that belief is tantamount to knowledge. There is nothing contained in the majority opinion that controverts this proposition. It is not now open to doubt, nor do I think it necessary to discuss the reason behind it. Neither is it open to doubt that the knowledge, which is made an element of the offense, may be proven by circumstantial evidence, and the practical reason that underlies that position is perfectly apparent. The court, I think, is not divided upon either of these propositions.

At a later time, however, the legislature saw fit to enlarge the substantive offense by providing that the offense should consist in receiving stolen goods knowing them to have been stolen or with reason to believe that they were stolen. This court cannot overlook the fact that the legislative change in the definition of this substantive offense was intended to have some practical effect. That practical effect seems to me to be obvious. Whereas, under the old statute, the actual knowledge could be proven by circumstantial evidence, the new statute goes a step further. Under it, the conviction may be had upon circumstantial proof of actual knowledge, and, furthermore, a conviction may be had upon circumstantial proof of reason to believe that the goods were stolen when received. In other words, in enlarging the scope of the substantive offense, the legislature has also enlarged the scope of the circumstantial proof required for a conviction. To illustrate: in this case, under the instruction of the court, the jury could have convicted either upon circumstantial proof of actual knowledge or upon circumstantial proof that the accused had reason to believe that the goods were stolen. Under the indictment, he could only have been convicted upon circumstantial proof of actual knowledge.

This distinction is not new. It has been drawn in several decided cases, and I deferentially suggest that an examination of some of the very cases used in the dissenting opinion illustrate its soundness. I quote at length from the case ofMeath v. State, 174 Wis. 80, 182 N.W. 334, cited by Judge Hatcher:

"By the express language of this statute, an essential element of the offense is that the defendant shall, at the time of his receiving or dealing with the stolen property, know that such property has been stolen. It is as essential that the jury shall, beyond a reasonable doubt, find that he had such knowledge at the time of his transaction with the property as they must that the property was theretofore stolen. Such guilty knowledge, or its equivalent, guilty belief, may be proven by circumstantial evidence; but it is not sufficient that such circumstantial evidence convinces the jury beyond a reasonable doubt that the defendant ought to have known that the property was stolen; it must go a substantial step further and satisfy them that he did know or believe.

"The portion of the charge as quoted above, and of which the defendant in error has complained, would warrant a jury in returning a verdict of guilty, if they believed that the facts and circumstances of this particular case were such that the defendant in the exercise of ordinary diligence ought to have known that the automobile left with him by Reynolds and Higgins had been stolen.

"That guilty knowledge, or its equivalent, guilty belief, is of the gist of this offense, has been declared by many decisions, among others the following: People v. Tantenella, 212 Mich. 614, 180 N.W. 474; People v. Lintz, 203 Mich. 683, 169 N.W. 918; People v. Grove, 284 Ill. 429, 120 N.E. 277; Weinberg v. People, 208 Ill. 15, 19, 69 N.E. 936; State v. Rountree, 80 S.C. 387, 61 S.E. 1072, 22 L.R.A. (N.S.) 833, with note; 17 Rawle C. L. p. 85.

"It is argued in support of the charge given by the court that it is warranted by what was said in the case of State v. Jacobs, 167 Wis. 299, 301, 166 N.W. 324. In that case involving a prosecution under the same statute here, but a portion of the entire charge was printed in the statement of facts. The effect of the entire charge was to convey to the jury the understanding that there must be a finding by them of guilty knowledge, but that such guilty knowledge might be found from circumstantial evidence. This appears from the language in that decision (167 Wis. 301, 166 N.W. 324) in approving of the instruction giving the test of the defendant's guilty knowledge under the facts and circumstances adduced in evidence. Such an instruction as is presented in this case and now passed upon was not before the court in the Jacobs Case, and that case therefore is not in in point here. If the language in the Jacobs Case, supra, could be construed to warrant the giving of such an instruction as here before us which would warrant a conviction if the jury are merely satisfied that the defendant ought to have known that the property was stolen, then such language must be deemed now modified."

This distinction is developed also, I think, in the case ofEllison v. Commonwealth, 190 Ky. 305, 227 S.W. 458, also cited by Judge Hatcher, which, after discussing the rule that actual knowledge may be proven by circumstantial evidence in a prosecution for receiving stolen goods, uses the following language, citing Robinson v. State, 84 Ind. 452; State v.Denny, 17 N.D. 519, 117 N.W. 869, as sustaining it:

"This is true, although the equitable rule, which provides that one shall be deemed to have knowledge of a fact when circumstances are brought to his knowledge which would cause a man of ordinary prudence to be upon his guard, and which circumstances, pursued with diligence, would result in the knowledge of the fact does not apply to the guilty knowledge required of one who is accused of knowingly receiving stolen property, as the application of such a rule might render one criminally liable for want of ordinary prudence or for negligence."

See also Bishop on Criminal Law (9th Ed.), p. 843-4, cited by Judge Hatcher. To my mind, the distinction runs generally through all of the authorities cited in the dissenting opinions.

For the reasons stated in the majority opinion and more fully set forth in this addition of my own, I am fully convinced that the distinction is real and substantial, and that in order to give any effect at all to the change in the statute made by our legislature, which, of course, we cannot regard as purposeless, it is necessary for this court to adhere to it.