State v. Alpert

92 A. 32, 88 Vt. 191, 1914 Vt. LEXIS 210

• Court: Supreme Court of Vermont
• Decided: October 14, 1914
• Status: Published

Opinion

Watson, J.

The information contains six counts charging the respondent with receiving goods in August and September, 1912, with knowledge that they had been stolen. The first count charges the receiving of a box of clothes; the second, three boxes of dress goods and umbrellas; the third, twenty boxes of Empire rubbers; the fourth, thirty boxes of Hood’s rubbers; the fifth, certain perfumery; the sixth, a box of alarm clocks. The respondent was acquitted on the first, third and sixth' counts, and convicted on the second, fourth, and fifth counts. The exceptions will be considered under the numbers given in the bill of exceptions.

I and II. These exceptions were taken to the admission of evidence relating solely to matters charged in the first count ■on which the respondent was acquitted. This being so, whether the evidénce was properly admitted or otherwise is now immaterial. Commonwealth v. Meserve, 154 Mass. 64, 27 N. E. 997; Commonwealth v. Billings, 167 Mass. 283, 45 N. E. 910.

III. The State called as a witness one Poirrier who testified to a conversation with the respondent after the witness returned from serving a sentence of imprisonment for burglary, shortly before the witness claimed the goods in question were sold to the respondent. The witness testified that respondent told him on that occasion that he, respondent, liked to do business with him (witness) because he would not squeal, because he did not squeal before. Witness further testified that he knew to what action respondent referred by that remark. The witness was then asked the question, “What was the matter to which' he referred by that remark?” The question was objected to as incompetent and immaterial. The witness answered: 4 4 To twenty bales of woolen cloth" taken from the American Woolen Mill Company from a box car at Essex Junction, valued at $1,000.” The State’s evidence tended to show that at the time of the conversation referred to, the respondent was aequaintéd with the witness and knew that he had served two terms of imprisonment for the crime of burglary, one for the term of eighteen months and one for the term of two and one-half years, and that he was recently out of prison and back home. There was no error in the ruling. The occasion to which the respondent had reference, being shown, the evidence tended to show not only that the respondent then knew that the witness for a long time had been, and was, a thief, but also that they were on such friendly terms that the respondent expressed his pleasure in doing business with the witness because he “didn’t squeal before,” meaning a time when the witness was convicted of stealing goods from a freight car. This evidence had a bearing on the question of the respondent’s guilty knowledge on the occasions later when he purchased goods as charged in the information, with which he knew the witness to be connected. Tt is not necessary that guilty knowledge be shown by direct evidence. It may be shown by the circumstances, if they were such as to satisfy the receiver’s mind that the goods were stolen, as if he purchased them “at suspicious and unreasonable times, or from persons who in the ordinary course of things could not fairly be considered as the unsuspected owners of property of the particular description, or had secreted or endeavored to secrete it, or attempted to explain the manner of acquisition by falsehood 'or prevarication.” Will’s" Cir. Ev. 95.

IV. It is sufficient to say concerning this exception, that the question asked was not within cross-examination, and could •be excluded in the discretion of the court.

V. Witness Howe had testified to one occasion- when one Hooper,'Poirrier, Fargo, and himself entered a freight car in September, 1912, and stole some boxes of dress goods, umbrellas, -and'alarm clocks, which they testified were sold to the respond-' ent for forty dollars, the money received being divided equally among the four thieves. Poirrier testified to the stealing of three boxes of dress goods and umbrellas by the -persons named and the sale of them to respondent. Fargo testified that in September h'e, Hooper, Howe, and Poirrier stole two crates, in'one of which he saw some dark checkered dress goods, some underskirts, and dark’ coats, in another he saw baking powder, and “guessed that there was tobacco and cigarettes'in it too”; but "did not remember seeing any umbrellas. He was asked by the State’s attorney, whether he received any money as the proceeds of that excursion, and subject to objection as immaterial, and that it did not appear that any of the things testified to were articles received by the respondent, answered in the affirmative. The jury might well find that the evidence of these witnesses related to one and the same occasion. This being so it cannot be said that the sum received was immaterial. Evidence that the goods mentioned in the information were sold to the respondent under value bears upon the question of guilty knowledge. Will’s Cir. Ev. 72.

VI. One Max Glasston, a witness called by the State, testified that he ordered from IT. B. Claflin & Company and from S. Stanehfield & Company, goods of the general description of part of those covered by the second count. For the purpose of connecting the respondent with the Stanehfield order, witness was asked in direct examination whether he instructed Stanclifield to turn the package over to Claflin & Company, to be sent in the box with their consignment. Objection was made on the ground that it was immaterial and did not tend to show that the goods were put into the box. The question was permitted, and the witness answered in the affirmative. The witness being shown one of a number of sateen skirts which Poirrier testified were stolen from a freight car of the Rutland Railroad and sold with goods consigned to Max Glasston, to the respondent at his store,' 19 Church Street, and which were found by the officers at that place, testified that he ordered from Stanehfield & Company three dozen sateen skirts, and that the article shown him was a sateen skirt; that he never received any of those skirts, nor any of the goods ordered from Claflin & Company, except two bales of cotton batting. The freight-cheeking clerk of the Rutland Railroad at Burlington testified that he checked out only two bales of cotton batting, and that two eases of dry goods were missing, according to the paper purporting to be a waybill not further identified. There was no evidence as to the Stanehfield shipment. This exception must be sustained. The fact that the witness instructed Stanehfield & Company to turn the package over to Claflin & Company to be sent in the box with that company’s consignment, was not evidence that in fact the package was so turned over, nor that it was so sent.

VII. Against the objection of respondent, the State was allowed to put in evidence by one Moody, the freight agent of the Rutland Railroad at Burlington, an experiment with two car seals taken from the car January 29, 1913, by the witness. The court found that the conditions of the experiment were substantially the same as the conditions of the seals in question, it having been shown that the seals were of the same kind of lead and wire as were used in September, that they were impressed with the Rutland seal number 226; that the seal leads had been pulled off the wires with a stick by witness as an experiment. The seal and wires were given to the jury to determine whether the wires could be put back and made to appear intact by a blank press. The ground of the objection was that there was no evidence that the conditions were substantially the same. An examination of the transcript (which is made controlling) shows evidence amply supporting the finding in this respect, hence the exception is without avail.

VIII. The witness McGowan testified to being with ITowe when a car was broken into and boxes taken out and put in the bushes; that they had been drinking; that the witness remained all night in the bushes where the boxes were carried, and early the next morning Howe, Fargo, and Vradenburgh were there with a team and were loading the boxes onto the truck when the witness woke up or came to; that the witness saw them load the boxes, and he rode on the truck to the shed mentioned below and saw them unload the boxes there. MeGoAvan testified that, he could go to the place of these sheds, that they were on the right hand side of Church Street, going up, that the store was facing on the street and the sheds were right back of the store. The State was alloAved to show by one Murphy, a' deputy sheriff, subject to respondent’s objection as immaterial and incompetent, that after McGowan left the witness stand he went with the Avitness up Church Street to the respondent’s store on the left hand side of the street and entered the alley-way beside it where there are sheds and places to hitch horses. In view of MeGoAvan’s testimony,' this testimony given by Murphy was both material and competent. In this connection it should be stated that McGowan, on being called to the witness stand later, testified that the place on Church Street where he thus went with the deputy sheriff was the shed where the boxes were left back of the Globe Department Store, -and that the number over the door to the store was 19.

IX and X. These exceptions were taken to the introduction of evidence addressed to the court on a preliminary question of identifying a shipping ticket (Exhibit 8), and a bill of lading. •(Exhibit 9), which the State intended to introduce as corroborating evidence. Respondent objected on the ground that the evidence was incompetent, immaterial, hearsay, not the best evidence, and had no tendency to prove any issue in the case. The court held that the identification in each instance was not made out, and consequently the papers were not offered. The preliminary evidence was received in the presence and hearing of the jury in the regular course of the trial, and at the time it was received there was nothing to indicate that it was not for consideration by the jury. Thereafter in its charge, the court told the jury with reference to the matters covered by these two exceptions and by exception XI, that it should repeat what it had already said in their hearing as to certain testimony which was addressed to the court, and was not for their consideration; that this testimony was received to identify certain papers; that they Avere not identified sufficiently to be received as evidence, and so the testimony with reference to them which was addressed to the court, “goes out of the case and is not for your consideration.” The evidence to the admission of which objection Avas made being on a preliminary question exclusively for the court, it was discretionary with the court to hear it in the presence of the jury, and the character of the evidence was such that abuse of discretion can not well be claimed. Moreover, the issue on which the evidence was received being decided in favor of the respondent, no harm resulted to him, and it is unnecessary to consider any specific ruling connected therewith.

XI. The State’s witness Moody, before mentioned as the freight agent of the Rutland Railroad at Burlington, testified to checking in Burlington, the Claflin-G-lasston shipment from a paper purporting to be a waybill, but not identified otherwise, and to finding a shortage. Respondent AAdthdrew objection upon the assurance that the paper would be identified later. This was not done. Thereafter one Robinson, a claim investigator for the Rutland Railroad, was called by the State as a witness and was alloAved to testify, in the presence of the jury in the regular course of the trial, as to the meaning of certain notations on this paper, that certain of them indicated the route, certain others indicated a shortage in the shipment when it was unloaded at Burlington, others indicated a shortage of two cases of dry goods addressed to Max Glasston, etc. There was no other evidence identifying the waybill. The waybill was then offered by the State in connection with the testimony of Robinson and the testimony of the witness Moody, as proof of the loading of the shipment) the route taken by it, the part of it that arrived in Burlington, and the part that did not. The waybill was received subject to the objection -that neither it nor the signature or writing on it had been properly identified. On the'following day the State’s attorney stated to the court that the State claimed nothing from the testimony of Robinson and moved to have it all stricken from the record, and also moved to have the admission of the waybill restricted so as to have it admitted 'only in connection with, and as corroborative of, the testimony of the witness Moody. Thereupon respondent’s attorney said, ‘ ‘ I want to look over his testimony, we will have it "done by noon.” The court then said, “It may be understood unless some reason is shown why it should not be, that Robinson’s testimony is stricken out, and the ruling admitting No. 7 (the waybill) is restricted to be used in connection with Moody’s testimony, so that counsel may understand the situation unless you call our attention to some reason why it should be modified.” No claim is made in respondent’s brief that this matter was again called to the attention of the court. This was tantamount to a, consent by respondent’s counsel to the ruling made, and a waiver of any exception previously taken in connection with the admission of the testimony so stricken from the record. Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N. E. 714.

XII. One Stetson, a witness produced by the State, testified that he was an employee of the Hood Rubber Company of "Watertown, Massachusetts, that on September 28, 1912, he had loaded into ear N. T. C. No. 61259, some 181 cases of rubbers consigned to numerous consignees at western points. One William Shakespear, a witness called by the State, testified that he was the conductor of a freight train containing N. T. C. car No. 61259, which during the night of October 5, 1912, stopped for about an hour in the Burlington yard. There was no evidence as to the condition of the car or the shipment after this time. ' The State called as a witness Edward C. Webster, traffic manager of the Hood Rubber Company, .and having ‘ ‘ general supervision of all movements of traffic ’ ’ for them. He identified various papers as copies made under his personal supervision, and known by him to be correct copies of certain papers in the files of that company, then in its office at East Water-town, Massachusetts, and stated that an unwritten rule of the company forbade the taking of original papers from the files-. The papers were in the form of invoices for shipments, showing the name and address of each consignee, the style of rubbers, case' number, etc. The witness testified' that the original invoices of' this concern were made from a blotter by certain clerks whose duty it was in the regular course of business to copy the invoice from the blotter, which was made up from the shipping tickets by clerks whose duty it was in the regular course of business to copy the shipping tickets onto the blotter, and other -clerks, in the performance of their duties in the regular course of business, made out the shipping tickets, and that all' these clerks,' at the -time the witness was testifying, were in East Watertown, Massachusetts. The clerks making the invoice on the blotter have no knowledge of the correctness of the' items entered by them. There'was no evidence as to the racking 'of the original invoices in this case except that they were in the regular course of business. Against the objection of the respondent that the papers were immaterial and incompetént and hearsay, and that there was no evidence as to the correctness of the originals, the State was allowed to- introduce these copies in evidence, and from them the witness identified goods taken in the original shipping boxes at the Sam Alpert store, as exactly similar to those shipped on ear N. Y. C. No. 61259, which goods the witness Poirrier identified as the goods stolen by him from a box -car of the Rutland Railroad and sold by him to the respondent. A ruling on the question here presented does not involve the admissibility of an entry made by one person in the regular course of business, recording' reports made to him by other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, where the practical inconvenience of producing as witnesses the numerous persons thus concerned would outweigh the probable utility of doing so. It involves the use of copies of invoices in the files of a company doing business in another state, and in its office there, upon the mere evidence “that an unwritten rule of the company forbade the taking of original papers from the files.” The original invoices are not documents of a public nature, the production of which is dispensed with on account Of the resulting inconvenience' from the frequent re-moral of public documents. They are documents of a private nature, not falling within that rule. Respecting such documents, “a copy is not evidence unless the original is lost, destroyed, or in the hands of a third person who cannot be compelled to produce it.” Clement v. Graham, 78 Vt. 290, 63 Atl. 146. Ann. Cas. 1913 E. 1208. The determination of the questions here is governed by the rule laid down in the ease of Osborne v. Grand Trunk Ry. Co., 87 Vt. 104, 88 Atl. 512. There a record kept by a hospital in Canada was offered in evidence, and on its exclusion the question was before this Court. Under the system obtaining in the hospital the senior nurse m charge of a patient was required to keep and did in that instance keep a hospital record for the purpose of showing the attending physician any symptoms arising in the patient’s condition in the absence of the doctor, the temperature, pulse, respirations, medicine administered, diet, and other details. One of the day nurses of the particular patient a part of the time was present at the trial and testified to keeping such a record when she was in charge, but it appeared that other nurses, especially night nurses, made entries on the record offered, as to the accuracy of which entries no evidence was introduced. The “other nurses ’ ’ were not present at the trial, and it was not shown who or where they were, nor why they were not present as witnesses. It was held that the rule of evidence governing the admission of regular entries upon the principle of necessity required that the person who made the entries “must be available as a witness.” The court quoting with approval from an opinion by Chief Justice Shaw, “that the ground is the impossibility of obtaining the testimony; and the cause of such impossibility seems immaterial.” Applying this rule to the ease at bar it is not enough that the traffic manager testified that the company had an unwritten rule forbidding the taking of original papers from the files. At most this is only a rule of business, which may or may not be applied by the concern in the circumstances of the particular case, and it is not unlikely that its action in this respect might be influenced by its interest in the goods alleged to have been received by the respondent. So far as appears, no effort was made by the State to have the original invoices brought here by some one having knowledge respecting them and the shipping of the goods to which they relate. The admission of the copies without proof of the impossibility of obtaining the original documents, was error. See Chaffee v. United States, 18 Wall. 516, 21 L. ed. 908.

XIII. The respondent, being cross-examined by the State, testified that he did not subscribe for the Burlington Free Press at his home, but that it was taken at his store — -Alpert & Rosenberg’s store at Winooski. Pie was shown a copy of that paper for November 30, 1912, and asked if he had read a certain article therein relating to the arrest of a man thought to be Poirrier, at Syracuse, N. Y., also a copy of that paper for December 2, containing another item as to the arrest, and was asked if he read that item, which questions he respectively answered: “I do not think I ever did, I do not remember it,” and 1 ‘ I would not swear as to that, I would not swear whether it came to my attention or not.” He was then asked, if he usually read the papers, and answered, ‘ ‘ Sometimes I do, not always. ’ ’ He further testified that he “did not to his knowledge know anything about Poirrier’s arrest until he was actually here in Burlington jail” after December 2, that he “had no recollection of it.” Thereafter in the State’s rebuttal, against respondent’s objections, the items referred to were admitted in evidence and read to the jury, the court- explaining that the items were not in any way to prove the facts stated therein, but as bearing upon the question whether the respondent through these articles became aware of the fact that Poirrier was arrested, as bearing upon his conduct. This exception must be sustained, The testimony of the respondent on which the two items were allowed to be read, was of too little, if. any, force to be submitted to the jury as a basis of any finding of fact.

XIV and XV. These exceptions were taken to some things said by counsel for the State in arguing the case to the jury, but as the same things are not likely to be said on another trial of the case, the exceptions are not considered.

XVI and XVII. These exceptions are not briefed by respondent.

XVIII, XIX and XX. Oh the question of guilty knowledge, the court instructed the jury, in part, “If he (respondent) entertained a belief that the goods were stolen, in the absence of actual knowledge of the fact, then that would make it guilty knowledge within the meaning of the law.” “Guilty knowledge may be shown by proof of attending facts and circumstances from which by the common experience and understanding of men. it may be inferred. In other words the inference of guilty knowledge arises from the circumstances. You are justified in presuming that the respondent acted rationally, and that whatever would convey knowledge or induce belief in the mind of a reasonable man that the goods in question were stolen, would in the absence of countervailing evidence, be sufficient to apprise the respondent of the fact, or induce in his mind the belief that th'e goods in question were stolen.” The court then submitted the question of guilty knowledge.to the jury on all the circumstances surrounding each particular transaction; and in so doing the court told the jury to consider what acquaintance the respondent had with these parties. “Did he know of them in a way to put a cautious man — a reasonable man — upon his guard as to their dealings?” ■

The respondent excepted to what the court said with reference to “belief,” and especially to what it said regarding circumstances that would “induce belief in the mind of a reasonable man” being sufficient to induce in the respondent’s mind the belief that the goods were stolen; also to what the court said about putting a reasonable man on his guard.

Under the exception respecting “belief,” it is said that the word “knowing” in the statute (P. S. 5763) has a different meaning from “belief.” Yet that statute neither creates nor defines the offence. It specifies the punishment for the offence as it exists at common law, and to that law we must look for the essential elements of the crime. State v. Bannister, 79 Vt. 524, 65 Atl. 586. The knowledge that the goods were stolen need not be such as a person acquires by seeing them taken; it is sufficient if the circumstances accompanying the transaction were such as to make the respondent believe them to have been stolen. Regina v. White, 1 Fost. & F. 665. In Com. v. Gazzolo, 123 Mass. 220, 25 Am. Rep. 79, the court said the issue whether the defendant received the goods, knowing they had been stolen, involved an inquiry into the state of his mind, or his belief. In Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, it was held that if the property had actually been stolen, a belief by the defendant that it had been stolen was tantamount to knowledge. In State v. Gordon, 105 Minn. 217, 117 N. W. 483, 15 Ann. Cas. 897, it was held that direct proof of guilty knowledge was unnecessary; that the circumstances accompanying a transaction may justify the inference that the respondent believed, and had received the goods on the belief, that they had been stolen.

The other exception to the charge presents a more serious question. The court there said in effect that if the circumstances were such as to create a belief in the mind of a reasonable man .that the goods in question had been stolen, they would be sufficient, in the absence of countervailing evidence, to induce such belief on the part of the respondent. The instruction thus given was strictly in accordance with the law as stated in Huggins v. People, 135 Ill. 243, 25 N. E. 1002, 25 Am. St. Rep. 357, and to say the least it is as favorable to the person charged as are the holdings of courts of last resort in several of the other states. Yet the effect of such an instruction is to make guilty knowledge of a respondent depend upon what the jury find would induce “belief” in the mind of a “reasonable man,” rather than upon what they find induced “belief” in his own mind. One essential element of the offence is, that the person, at the time he received the stolen goods, had knowledge that they had been stolen. If he did not have actual or positive knowledge, the question is whether from the circumstances he — not some other person — believed they had been stolen. The circumstances must have that effect upon his mind, to constitute knowledge by him. The question must be determined upon the individual test of the accused. The instruction given fell short of this and in our opinion, is at variance with the true doctrine.’ This holding is supported by Cohn v. People, 197 Ill. 482, 64 N. E. 306; State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833; Robinson v. State, 84 Ind. 452; State v. Denny, (N. D.) 117 N. W. 869.

XXIII. The respondent moved to set aside the verdict because, the value of the property received by the respondent was not shown by the evidence, nor found by the jury.

Since the ease is to be remanded for a new trial because of the erroneous’ rulings in other respects, this question is not considered. Yery likely evidence as to the value will be introduced at the next trial.

Judgment and sentence reversed, and cause remanded for a neiu trial.