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Wis. 238; State v. Longley, 10 Ind. 482; | in concealing, or have, or retain in his posElliott v. State, 26 Ala. 80; State v. Dars- session with intent to convert to his own use bert, 42 Mo. 242; State v. Hall, 97 N. C. 474; or gain, any money, property, record, vouchStato v. Wainroright, 60 Ark. 280.

er, or valuable thing whatever, of the The mere fact that a party has, in the ab moneys, goods, chattels, records, or property sence of the accused, said that he himself is of the United States, which has theretofore guilty, is not to be received as evidence suf- been embezzled, stolen, or purloined, such ficient to justify the conviction of the ac- person shall, on conviction before the circuit cused.

or district court of the United States in the Com. V. Elisha, 3 Gray, 460; State v. district wherein he may have such property, Newport, 4 Harr. (Del.) 567; State v. Ar be punished by a fine not exceeding five fold, 48' Iowa, 566; State v. Westfall, 49 thousand dollars, or imprisonment at hard Iowa, 328; Hicks's Case, 1 N. Y. City Hall labor in the penitentiary not exceeding five Rec. 66; People v. Kraker, 72 Cal. 459; Reg. yeurs, one or both, at the discretion of the v. Robinson, 4 Fost. & F. 43; Reg. v. Pratt, court before which he shall be convicted; and 4 Fost. & F. 315.

such receiver may be tried either before or If the record of the conviction of the prin- after the conviction of the principal felon, cipal felons be laid out of the case, there is but if the party has been convicted, then the then no evidence that the property was judgment against him shall be conclusive evi. "stolen property,” and the verdict must be dence in the prosecution against such reset aside.

ceiver that the property of the United States State v. Caveness, 78 N. C. 484.

therein described has been embezzled, stolen, The possession of stolen stamps by a reg. or purloined.” 18 Stat. at L. 479, chap. 144. ular practitioner in the court ought not to The indictment contained three counts, be considered as a presumption against him, but the defendant was tried only on the first. unless long continued and coupled with some In that count it was stated that Thomas J. other incriminating circumstances.

Wallace, Ed. Baxter, and Frank King on the Durant v. People, 13 Mich. 351; State v. 7th day of June, 1890, at Highmore, within Bulla, 89 Mo. 595; State v. Caveness, 78 N. the jurisdiction of the court, feloniously and C. 484; Wilson v. State, 12 Tex. App. 481. forcibly broke into a postoffice of the United

Mr. James E. Boyd, Assistant Attorney States, and feloniously stole, took, and carGeneral, for defendant in error:

ried away *therefrom certain moneys and (49) Commonly in England and in numbers of property of the United States, to wit: 3,750 our states, the indictment does not aver postage stamps of the denomination of two from whom the stolen goods were received. cents and of the value of two cents each, 1,

3 Chitty, Crim. Law, 991; Arch. Crim. Pl. 266 postage stamps of the denomination of & Ev. 10th Lon. ed. 269, 19th ed. 472; Arch.one cent and of the value of one cent each, 140. New Crim. Proc. 474; Jupitz v. People, 34 postage stamps of the denomination of four Ill. 516; Cohen v. People, 5 Park. Crim. cents and of the value of four cents each, 250 Rep. 330; State v. Murphy, 6 Ala. 845; Com. postage stamps of the denomination of five v. Lakeman, 5 Gray, 82; Queen v. Gold-cents and of the value of five cents each, 80 emith, L. R. 2 C. C. 74: Floran v. State, 24 postage stamps of the denomination of eight Tex. 161; Rex v. Jervis, 6 Car. & P. 156; cents and of the value of eight cents each, Thomas's Case, 2 East, P. C. 781.

and also United States Treasury notes, na

tional bank notes, silver certificates, gold (47). *Mr. Justice Harlan delivered the opin- certificates, silver, nickel, and copper coins of ion of the court:

the United States as well as current money of The plaintiff in error Kirby was indicted the United States, a more particular descripin the district court of the United States tion of which the grand jury were unable to for the southern division of the district of ascertain, of the value of $58.19; and that

South Dakota under the act of Congress of the persons above named were severally in. (48) March 3d, 1875, *entitled “An Act to Punish dicted and convicted of that offense, and had

Certain Larcenies, and the Receivers of been duly sentenced upon such conviction. Stolen Goods.” 18 Stat. at L. 479, chap. 144. It was then alleged that the defendant on

The first section provides that “any person the 9th day of June, 1896, at the city of who shall embezzle, steal, or purloin any Sioux Falls, the postage stamps "so as aforemoney, property, record, voucher, or valuable said feloniously stolen, taken, and carried thing whatever of the moneys, goods, chat. away, feloniously did receive and have in his tels, records, or property of the United possession, with intent then and there to conStates shall be deemed guilty of felony, and vert the same to his own use and gain, the on conviction thereof before the district or said Joe Kirby then and there well knowing circuit court of the United States in the dis- the said postage stamps to have been there trict wherein said offense may have been tofore feloniously stolen, taken, 'and carried committed, or into which he shall carry or away, contrary to the form, force, and effect have in possession of said property so em of the statutes of the United States in such bezzled, stolen, or purloined, shall be pun. cases made and provided and against the ished therefor by imprisonment at hard la- peace and dignity of the United States.” bor in the penitentiary not exceeding five At the trial of Kirby the government of. years, or by a fine not exceeding five thou. fered in evidence a part of the record of the sand dollars, or both, at the discretion of the trial of Wallace, Baxter, and King, from court before which he shall be convicted." which it appeared that Wallace and Baxter

By the second section it is provided that after severally pleading not guilty withdrew "if any person shall receive, conceal, or aid' their respective pleas and each pleaded

guilty and was sentenced to confinement in found, by a careful consideration of all the the penitentiary at hard labor for the term evidence, beyond a reasonable doubt, that the of four years. It appeared from the same property alleged in the indictment was storecord that King having pleaded not guilty len, then you will proceed to consider was found guilty and sentenced to the pen whether or not the defendant ever at any itentiary at hard labor for the term of five time, either on the date alleged in the indictyears.

ment or any other date within three years The admission in evidence of the record of previous to the finding of the indictment, the conviction of Wallace, Baxter, and King, had in his possession or received any of this was objected to upon the ground that the property which was stolen from the post

above act of March 3d, 1875, was unconsti- office at Highmore. Now, in order to find [60] tutional so *far as it made that conviction the defendant guilty of the offense charged

conclusive evidence in the prosecution of the in the indictment, you would have to find bereceiver that the property of the United yond a reasonable doubt from all the evi. States described in the indictment against dence that he either actually received a por. him had been embezzled, stolen, or purloined. tion or all of the property which was stolen The objection was overruled, and the record from the postoffice at Highmore, and that he offered was admitted in evidence, with ex- eceived that property from the thief or ceptions to the accused.

thieves who committed the theft at the HighAfter referring to the provisions of the act more postoffice or some agent of these thieves. of March 3d, 1875, and to the indictment The statute punishes, you will observe, both against Kirby, the court, among other the receipt of stolen property, knowing it to things, said in its charge to the jury: "In have been stolen, with the intent described in * order to make out the case of the prosecu- the statute, and also the having in the postion, and in order that you should be author- session of such property, knowing it to have ized to return a verdict of guilty in this been stolen, with the intent to convert it to case, you must find beyond a reasonable the person's own use or gain. If you find doubt from the evidence in the case certain beyond a reasonable doubt that any of the propositions to be true. In the first place it property which was stolen at the postoffice must be found by you beyond a reasonble at Tighmore was actually received or had in doubt that the property described in the in- the possession of the defendant, then you dictment, and which is also described in the canuot convict unless you further find that indictment against these three men (Wal, the defendant had the property in his poslace, Baxter, and King] who it is alleged session or received it from the thief or his have been convicted, was actually stolen agent, knowing at the time that it was stolen from the postoffice at Highmore, was the property. Now, upon the question of property of the United States and of a cer whether the defendant knew that it was stotain value. Second. You must find beyond len property, you will, of course consider all a reasonable doubt that the defendant Joseph the evidence in the case. You have the right Kirby received or had in his possession a to find that the person or the defendant portion of that property which had been know that it was stolen property from the stolen from the postoffice at Highmore. admissions he may have made, if he made Third. That he received or had it in his pos- any, if there is such evidence in the case, or session with intent to convert it to his own from other circumstances that you would use and gain. Now, upon the first proposi- have the right to infer *that he did know. [52] tion-as to whether the property described Now, if a person received property under in the indictment was stolen as alleged in the such circumstances that would satisfy a man indictment—the prosecution has introduced of ordinary intelligence that it was stolen in evidence the record of the trial and con- property, and you further find beyond a rea. viction of what are known as the principal sonable doubt that he actually did believe it felons--that is, the parties who it is alleged was stolen property, then you have a right committed the larceny. Now, in the ab- to infer and find that at the time of the resence of any evidence to the contrary, ceipt of the property the person knew that the record is sufficient proof in this it was stolen. Now, the next point in the case upon which you would be author- case is in regard to the intent the defendant ized to find that the property alleged in that had in regard to the use or disposal of the indictment was stolen as alleged; in other property. The statute requires that this re words, it makes a prima facie case on the ceipt of stolen property, knowing it to have part of the government which must stand as been stolen, must also be with the intent to sufficient proof of the fact until some evi-convert it to the use of the party in whose dence is introduced showing the contrary, possession it is found. There are statutes ond, there being no such evidence in this which simply punish the knowingly receiv

case, you will, no doubt, have no trouble in ing of stolen property. That was the com(51) coming to a conclusion that the property *de mon law. But this statute has added this

scribed in the indictment was actually further ingredient that it must be done with stolen, as alleged, from the postoffice at the intent to convert it to the party's own Highmore. But I don't want you to un- use and gain. It was probably put in for derstand me to say that that record proves the reason that the statute goes further than that the stamps that were found in Kirby's the common law, making it punishable to possession were stolen property, or that they conceal or aid in concealing with intent to were the stamps taken from the Highmore convert it to his own use and gain. Now, postoffice. Upon the further proposition that all these propositions that I have charged the court has suggested, after you have must be made out by the prosecution, of

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course, beyond a reasonable doubt, and in rested upon a trial and verdict of guilty. case you have a reasonable doubt of any of With the record of those convictions out of these ingredients, it will be your duty to ac- the present case, *there was no evidence (54) quit the defendant."

whatever to show that the property alleged In response to a request from the jury to lo have been received by Kirby was stolen be further instructed, the court, after refer- froni the United States. ring to the indictment and to the second sec- We are of the opinion that the trial court tion of the act of 1875, said: “This indict. erred in admitting in evidence the record of ment does not contain all the words of the the convictions of Wallace, Baxter, and King, statute. This indictment charges the de- and then in its charge saying that in the abfendant with having, on the 9th day of June, sence of proof to the contrary the fact that 1896, received and had in his possession these the property was stolen from the United postage stamps that were stolen from the States was sufficiently established against United States at Highmore. Now, if you Kirby by the mere production of the record should find beyond a reasonable doubt from showing the conviction of the principal fel. all the testimony in the case, in the first ons. Where the statute makes the convicplace, that the postage stamps mentioned in tion of the principal thief a condition precethe indictment or any of them were stolen dent to the trial and punishment of a refrom the postoffice at Highmore by these par ceiver of the stolen property, the record of ties who, it is alleged, did steal them, and the trial of the former would be evidence in you further find beyond a reasonable doubt the prosecution against the receiver to show that these postage stamps or any portion of that the principal felon had been convicted; them were on the 9th day of June, 1896, re- for a fact of that nature could only be es

ceived by the defendant from the thieves or tablished by a record. The record of the con(63) their agent, knowing the same to have been viction of the principals could not, however,

so stolen from the United States by these be used to establish, against the alleged reparties, with the intent to convert the same ceiver, charged with the commission of anto his own use or gain, or if you find beyond other and substantive crime, the essential a reasonable doubt that they were so stolen fact that the property alleged to have been at the Highmore postoffice, as I have stated, feloniously received by him was actually and that the defendant, on or about the 9th stolen from the United States. Kirby was day of June had thein in his possession or not present when Wallace and Baxter conany portion of them, knowing the same to fessed their crime by pleas of guilty, nor have been so stolen, with the intent to when King was proved to be guilty by wit. convert the same to his own use and gain, nesses who personally testified before the and you will find all these facts beyond a jury. Nor was Kirby entitled of right to reasonable doubt, you would be authorized to participate in the trial of the principal fel. return a verdict of guilty as charged."

If present at that trial he would not The jury returned a verdict of guilty have been permitted to examine Walace and against Kirby. The exceptions taken by him Baxter upon their pleas of guilty, nor at the trial were sufficient to raise the ques. cross-examine the witnesses introduced tions that will presently be considered. against King, nor introduce witnesses to

As shown by the above statement the prove that they were not in fact guilty of charge against Kirby was that on a named the offense charged against them. If he day he feloniously received and had in his had sought to do either of those things—even possession with intent to convert to his own upon the grourà that the conviction of the use and gain certain personal property of pricipal felons might be taken as establishthe United States, theretofore feloniously | ing prima facie a vital fact in the separate stolen, taken, and carried away by Wallace, prosecution against himself as the receiver Baxter, and King, who had been indicted of the property—the court would have in. and convicted of the offense alleged to have formed him that he was not being tried and been committed by them.

could not be perinitted in anywise to interNotwithstanding the conviction of Wal- fere with the trial of the principal felons. lace, Baxter, and King, it was incumbent And yet the court below instructed the jury upon the government, in order to sustain its that the conviction of the principal felong charge against Kirby, to establish beyond upon an indictment *against them alone was(65) reasonable doubt: (1) That the property de- sufficient prima facie to show, as against scribed in the indictment was in fact stolen Kirby, indicted for another offense, the exfrom the United States; (2) that the de- istence of the fact that the property was fendant received or retained it in his posses. stolen-a fact which, it is conceded, the sion, with intent to convert it to his own use United States was bound to establish beyond or gain; and (3) that he received or re- a reasonable doubt in order to obtain a vertained it with knowledge that it had been dict of guilty against him. stolen from the United States.

One of the fundamental guaranties of life How did the government attempt to prove and liberty is found in the Sixth Amendment the essential fact that the property was of the Constitution of the United States, stolen from the United States?' In no other which provides that "in all criminal prosecu. way than by the production of a record show. tions the accused shall

be coning the conviction under a separate indict. fronted with the witnesses against him.” Inment of Wallace, Baxter, and King—the stead of confronting Kirby with witnesses to judgments against Wallace and Baxter rest- establish the vital fact that the property al. ing wholly upon their respective pleas of leged to have been received by him had been guilty, while the judgment against King' stolen from the United States, he was con

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fronted only with the record of another crim- | dicted for feloniously receiving from one inal prosecution, with which he had no con: Sarah Rich certain goods and chattels there nection and the evidence in which was not tofore feloniously stolen by her from one given in his presence. The record showing Martha Clarke. "At the trial before Mr. Justhe result of the trial of the principal felons tice Patteson it was proposed to prove a was undoubtedly evidence, as against them, confession of Sarah Rich, made before a magin respect of every fact essential to show istrate in the presence of the prisoner, in their guilt. But à fact which can be pri- which she stated various facts implicating marily established only by witnesses cannot the prisoner and others as well as herself. be proved against an accused-charged with The evidence was not admitted, but the court a different offense for which he may be con admitted other evidence of what Sarah Rich victed without reference to the principal of. said *respecting herself only. The prisoner (57) fender-except by witnesses who confront was convicted and sentenced. The report of him at the trial, upon whom he can look the case proceeds: "Having since learned while being tried, whom he is entitled to that a case occurred before Mr. Baron Wood cross-examine, and whose testimony he may at York, where two persons were indicted toimpeach in every mode authorized by the es- gether, one for stealing and the other for tablished rules governing the trial or con receiving, in which the principal pleaded duct of criminal cases. The presumption of guilty and the receiver not guilty, and that the innocence of an accused attends him Mr. Baron Wood refused to allow the plea throughout the trial, and has relation to of guilty to establish the fact of the stealing every fact that must be established in order by the principal as against the receiver, the to prove his guilt beyond a reasonable doubt. learned judge thought it right to submit to “This presumption, this court has said, “is the learned judges the question whether he an instrument of proof created by the law in was right in admitting the confession of favor of one accused, whereby his innocence Sarah Rich in the present case. The learned is established until sufficient evidence is in judge thought it right to add that the pristroduced to overcome the proof which the law oner, one Taylor, and Sarah Rich had imme has created.” Coffin v. United States, 156 diately before been tried upon an indictment U. S. 432, 459 (39: 481, 493]. But that pre- for burglary, and stealing other property in sumption in Kirby's Case was in effect held the house of Mrs. Clarke on the night of the in the court below to be of no consequence; 22d of August; and that Taylor and Rich

for as to a vital fact which the government had been found guilty, but the prisoner had (56) was bound to establish affirmatively, *he was been acquitted, there being no proof of his

put upon the defensive almost from the out- presence. The learned judge did not pass set of the trial by reason alone of what ap; sentence upon Sarah Rich immediately; but peared to have been said in another criminal # new jury was called, and the prisoner was prosecution with which he was not connected tried as a receiver, so that either party and at which he was not entitled to be rep- might have called her as a witness. In Eas. resented. In other words, the United States ter term, 1832, all the judges (except Lord having secured the conviction of Wallace, I.yndhurst, C. B., and Taunton, J.) met, and Baxter, and King as principal felons, the de håving considered this case, were unanimousfendant charged by a separate indictment ly of opinion that Sarah Rich's confession with a different crime—that of receiving the was no evidence against the prisoner; and property in question with knowledge that it many of them appeared to think that had was so stolen and with intent to convert it Sarah Rich been convicted, and the indict. to his own use or gain—was held to be pre- ment against the prisoner stated, not her sumptively or prima facie guilty so far as conviction, but her guilt, the conviction the vital fact of the property having been would not have been any evidence of her stolen was concerned, as soon as the govern. guilt, which must have been proved by other ment produced the record of such conviction means; and the conviction was held wrong." and without its making any proof whatever In a later case, Keable v. Payne, 8 Ad. & El. by. witnesses confronting the accused of the 555, 560, which was an action involving a existence of such vital fact. We cannot as question as to the admission of certain evi. sent to this view. We could not do so with. dence, and was heard in the Queen's Bench out conceding the power of the legislature, before Lord Denman, Chief Justice, and Lit. when prescribing the effect as evidence of tledale, Patteson, and Williams, Justices, the records and proceedings of courts, to im. Mr. Justice Patteson, referring to Rer v. pair the very substance of a right long Turner, above cited, said: "On an indict. deemed so essential for the due protection of ment for receiving goods feloniously taken, life and liberty that it is guarded against the felony must be proved; and neither a legislative and judicial action by provisions judgnient against a felon, nor his admission, in the Constitution of the United States and would be evidence against the receiver. In in the Constitutions of most, if not of all, such a case I *once admitted evidence of a (58) the states composing the Union.

plea of guilty by the taker; and it was held This precise question has never been before that I did wrong." A note in Starkie on this court, and we are not aware of any ad. Evidence, p. 367, is to this effect: “In Res judged case which is in all respects like the v. Turner, 1 Moody, C. C. 347; Rer v. Ratpresent one. But there are adjudications cliffe, 1 Lewin, C. C. 121; Keable v. Payne, which proceed upon grounds that point to & Äd. & El. 560, it is stated that many of the the conclusion reached by us.

judges (all the judges except two being as. A leading case is Rex v. Turner, 1 Moody, sembled) were of opinion that the record of C. C. 347. In that case the prisoner was in the conviction of the principal would not

be evidence of the fact, where the indictment seems that a record of conviction of a prin against the accessory alleged, not the convic- cipal in the crime of stealing, who pleado tion, but the guilt of the principal. And on guilty, would not now be received as evidence principle it would seem to be evidence only of the guilt of the principal against the re when the indictment alleges the conviction ceivers of the stolen property, or the acces. of the principal, and simply to support that sory after the fact; and it is said to be doubtallegation."

ful whether a record of the conviction of the The leading American case on the question principal on his plea of not guilty would be is Commonwealth v. Elisha, 3 Gray, 460. admissible against the accessory. As proof The indictment was for receiving stolen of the fact of conviction, the record would goods knowing them to have been stolen. be admissible and conclusive, but it seems The court, speaking by Metcalf, J., said: not to be admissible evidence of the guilt of “This indictment is against the defendant the convict, as against another person alone, and charges him with having received charged with being connected with him in property stolen by Joseph Elisha and Will. crime, the record being in this respect res iam Gigger, knowing it to have been stolen. inter alios acta. It is evidence that a cer. It is not averred, nor was it necessary to tain person, named in the record, was conaver or prove (Rev. Stat. chap. 126, 8 24), victed by the jury, but not evidence as that they had been convicted of the theft. against a third person, supposed to have But it was necessary to prove their guilt, in been engaged with him in a particular transorder to convict the defendant. Was the action, as to the ground on which the conrecord of their conviction on another indict. viction proceeded, namely, that the convict ment against them only, upon their several committed the criminal act described in the pleas of guilty to a charge of stealing the record.” 2 Phillips, Ev. 3d ed. pp. 22–3. property, legal evidence, against the defend- *Taylor in his Treatise on Evidence, after (60) &nt, that they did steal it? We think not, stating that a prisoner is not liable to be afeither on principle or authority. That confected by the confessions of his accomplices, viction was res inter alios. The defendant says: "So strictly is this rule enforced, that was not a party to the proceedings, and had where a person is indicted for receiving no opportunity nor right to be heard on the stolen goods a confession by the principal trial. And it is an elementary principle of that he was guilty of the theft is no evidence justice, that one man shall not be affected of that fact as against the receiver (Rex v. by another's act or admission, to which he is Turner); and it would be the same, it seems, a stranger. That conviction being also on if both parties were indicted together, and the confession of the parties, the adjudged the principal were to plead guilty. (Id.)” cases show that it is not evidence against 1 Taylor, Ev. 6th ed. g 826. the defendant. Rex v. Turner, 1 Moody, C. C. The principle to be deduced from these au347, and 1 Lewin, C. C. 119; 1 Greenl. Ev. 8 thorities is in harmony with the view that 233; Rosc. Crim. Ev. 2d ed. 50; The State v. one accused of having received stolen goods Newport, 4 Harr. (Del.) 567. We express with intent to convert them to his own use, no opinion concerning a case differing in any knowing at the time that they were stolen, is

particular from this, but confine ourselves to not within the meaning of the Constitution, (591ihe exact *question presented by these excep- confronted with the witnesses against him

tions. Our decision is this, and no more: when the fact that the goods were stolen is The record of the conviction of a thief, on established simply by the record of another his plea of guilty to an indictment against criminal case with which the accused had no him alone for stealing certain property, is connection and in which he was not entitled not admissible in evidence to prove the theft, to be represented by counsel. As heretofore on the trial of the receiver of that property, stated, the crime charged against Wallace, upon an indictment against him alone, which Baxter, and King and the crime charged does not aver that the thief has been con- against Kirby were wholly distinct-none victed."

the less so because in each case it was essenTo the same general effect are some of the tial that the government should prove that text-writers. Phillips, in his Treatise on the property described was actually stolen. the Law of Evidence, referring to the rule as The record of the proof of a vital fact in one to the admissibility and effect of verdicts or prosecution could not be taken as proof in the judgments in prosecutions, says: “A record other to the existence of the same fact. The dif. of conviction of a principal in felony has ficulty was not met when the trial court failed tecn admitted in some cases, not of modern as required by the act of 1875 to instruct the date, as evidence against the accessory. jury that the record of the conviction of the King v. Smith, 1 Leach, C. C. 288; Rex v. principal felons was conclusive evidence of Baldwin, 3 Campb. 265. This has been the fact that the property had been actually supported on the ground of convenience, be stolen, but merely said that such record made cause the witnesses against the principal a prima facie case as to such fact. The fun. might be dead or not to be found, and ondamental error in the trial below was to ad. the presumption that the proceedings must mit in evidence the record of the conviction be taken to be regular, and the guilt of the of the principal felons as competent proof for convicted party to be established. Fost. any purpose. That those persons had been Disc. iii. chap. 2, § 2, p. 364. But this is not convicted was a fact not necessary to be esstrictly in accordance with the principle re- tablished in the case against the alleged respecting the admissibility of verdicts as evi- ceiver; for under the statute he could be dence against third persons. From the re prosecuted even if the principal felons had port of the recent case of Rex v. Turner, it not been tried or indicted. As already stated,

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