State v. Gordon

JAGG-ABJD, J. (after stating the facts as above). The pivotal question is whether the court properly received the testimony of the boys, Brooks and Burton. The offense charged consists of three factors, each of which must be proven beyond a reasonable doubt by competent evidence, and not alone on the uncorroborated testimony of accomplices (section 4744, R. L,. 1905), to sustain a conviction: First, that defendant bought the property described; second, that the property bought was stolen; third, that defendant knew it to be stolen when he bought it. The first of these factors is admitted. Whether the state sufficiently bore the burden of proving the other two factors depends primarily upon the legal propriety of the admission by the trial court of the evidence of the boys, Brooks and Burton. The defendant insists that they were accomplices, that their testimony was uncorroborated, and that therefore the conviction could not stand. This position we regard as untenable. State v. Lawlor, 28 Minn. 216, 224 , 9 N. W. 698, 702 . “The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense either as principal or as accessory? If he could not, then he is not an accomplice.” State v. Durnam, 73 Minn. 150, 165 , 75 N. W. 1127 . A person who steals property and one who afterwards receives it from him, knowing it to have been stolen, are guilty of separate offenses, and without more neither is an accomplice of the other. State v. Scott, 136 Iowa 152 , 113 N. W. 758 . And see Bieber v. State, 45 Ga. 569 ; Allison v. Com. 83 Ky. 254 ; Com. v. Barry, 116 Mass. 1 ; Levi v. State, 14 Neb. 1 , 14 N. W. 543 ; People v. Ames, 39 Cal. 403 ; Montgomery v. State, 40 Ala. 684 ; Craft v. State, 3 Kan. 450 . *220 Guilty knowledge on the part of the defendant .was not directly proved. In the nature of things, that is,ordinarily impossible; nor is it necessary. The circumstances accompanying the transaction may justify the inference by the jury that the prisoner believed, and had received the goods on belief, that they were stolen. 2 Bishop, Crim. Law, § 1138; 1 Wharton, Crim. Law, § 984; 24 Am. & Eng. Enc. (2d Ed.) 52. For in Huggins v. People, 135 Ill. 243 , 25 N. E. 1002 , 25 Am. St. 357, Shope, J., said: “If he [one charged with having received stolen goods] purchase or receive the goods with a belief that they are stolen, he will be held to have had that knowledge required by the statute. The knowledge of the prisoner, in this sense, is the gist of the offense, and must be found by the jury as a fact. In determining whether the fact existed, the jury will be justified in presuming that the prisoner acted rationally, and that whatever would convey knowledge or induce belief in the mind of a reasonable person, would, in the absence of countervailing evidence, be sufficient to apprise the prisoner of the like fact, or induce in his mind the like impression and belief.” The remarks of Craig, C. J., in Friedberg v. People, 102 Ill. 160 , at page 162 of 102 Ill., are peculiarly applicable to the facts in this case: “Had the goods been taken to the defendant in the daytime by a regular dealer in such goods, and sold for a fair valuation, the transaction could not be regarded as suspicious. But such was not the case. The property was taken to defendant at an unusual hour of the night.” In this case we are of opinion that within these principles, the theft by Burton and Brooks and guilty knowledge of defendant, were sufficiently proven. The other assignments of error relate to the cross-examination of the defendant as to a former conviction. The cases cited by appellant as to cross-examination concerning a former arrest only are clearly distinguishable. It is the settled law that on cross-examination a defendant may be impeached by questions as to a former conviction, and under the statute in this state the party cross-examining shall not be concluded by his answer thereto. Section 4780, R. L. 1905; State v. Quirk, 101 Minn. 334 , 112 N. W. 409 ; Wigmore, Ev. § 1270. Affirmed.