State v. Ross , 46 N.D. 167 ( 1920 )

Bronson, J.

The defendant was convicted upon an information charging him with buying and receiving certain stolen meat and pork. He has appealed from the judgment of conviction. The evidence has not been sent to this court. The defendant demurred to the information and made a motion in arrest of judgment. The body of the information charges the commission of a crime as follows:

“That at said time and place the said Sam Eoss did knowingly and feloniously buy and receive certain stolen property, to wit, two hind quarters and one front quarter of dressed stag beef fresh weighing about 75 pounds each, and one piece of dressed fresh side pork weigh-, ing about 10 pounds, from a party or parties unknown, not the property of said Sam Eoss, knowing the same to have been stolen, and with the intent to deprive the owner thereof, then and there of the value of $50; the same being a part of the beef and pork stolen as follows, to wit: That at the said time and place an unknown person or persons did wilfully, unlawfully, and feloniously take, steal, and carry away two dressed beeves and one dressed hog from the slaughterhouse used by Sjol Brothers, near Van Hook, North Dakota, then and there the property of Sjol Brothers, and not the property of the person or persons unknown; with the intent to deprive the owner thereof; then and there of the value of $200.”

The defendant challenges the sufficiency of this information to constitute a public offense, upon the grounds that there is no direct allegation that the stolen meat was the property of Sjol Brothers; that it does not allege that the unknown parties were guilty of the theft, nor does it negative lawful possession or ownership in such unknown parties; that the defendant may have had the right to use the slaughterhouse “then and there the property of Sjol Brothers.” We are of the opinion that the information cannot be challenged upon any such grounds. Although the phrases might have been differently arranged, and placed perhaps in closer apposition to the words which some of them modify, nevertheless, it is clear, upon reading the entire information, that the phrase, “then and there the property of Sjol Brothers, and not the property of the person or persons unknown; with the intent to deprive the owner thereof,” clearly applies and refers to the meat alleged to have been stolen. See 34 Cyc. 521; State v. Johnson, 17 N. D. 554, 118 N. W. 230. The objection raised concerning the allegation about the parties unknown is without merit. See State v. Denny, 17 N. D. 519, 117 N. W. 869; State v. Pirkey, 22 S. D. 550, 118 N. W. 1042, 18 Ann. Cas. 192. Among the instructions given to the jury the court charged as follows:

“The finding of stolen property in the possession of another shortly after said property has been stolen raises the presumption of guilt as against the person in whose possession the same is found; but this presumption, however, is a rebuttable one, and if the possession is explained to the satisfaction of the jury, then this presumption is overcome and should not be considered as any evidence of the guilt of the accused. The finding of property in the possession of the defendant, which has been stolen, is, of course, not in itself sufficient to warrant a eonviction, but is merely a circumstance to be considered by the jury in passing upon his guilt or innocence.”

The defendant challenges this instruction as erroneous on the ground that it raised a presumption as a matter of law that he was guilty.

We are of the opinion that this charge was not erroneous; otherwise the court charged the jury that in order to find the defendant guilty they must determine beyond a reasonable doubt that at the time he received the property he knew it to be stolen, and that at the time it came into his possession he bought or purchased the same with the intent to deprive the true owner of the meat.

The application of this presumption as an evidentiary presumption in larceny cases is well known. 25 Cyc. 133. It is an evidentiary presumption of guilt deducible from the unexplained possession of property. Ibid. See notes in 12 L.R.A.(N.S.) 199, and 70 Am. Dec. 447. It is not unfair nor improper to apply this presumption, an evidentiary presumjfiion deducible from the possession of property, equally as well to a person charged with unlawfully receiving stolen property knowing it to be stolen, as to one charged with its original taking. See People v. Weldon, 111 N. Y. 569, 19 N. E. 279; Goldstein v. People, 82 N. Y. 231; Martin v. State, 104 Ala. 71, 16 So. 85; Boyd v. State, 150 Ala. 101, 43 So. 205; 34 Cyc. 524, 548; State v. Rosencrans, 9 N. D. 163, 164, 82 N. W. 422; State v. Guild, 149 Mo. 370, 73 Am. St. Rep. 400, 50 S. W. 909; State v. Richmond, 186 Mo. 71, 84 S. W. 880; Jenkins v. State, 62 Wis. 49, 21 N. W. 238; State v. Lamb, 39 S. D. 307, 164 N. W. 69; State v. Hoshaw, 89 Minn. 307, 310, 94 N. W. 873. The charge as a whole upon this question, in our opinion, properly submitted to the jury this presumption as an evidentiary presumption, and therefore was not prejudicially erroneous. The judgment is affirmed.

Birdzell and Robinson, JJ., concur.