
    People of the State of New York, Resp’ts, v. Andrew Weldon, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 18, 1888.)
    
    
      1, Criminal law—Crime oe receiving stolen property—Penal Code, § 550—What sufficient to constitute the crime.
    The Penal Code, § 550, which defines the crime -of receiving stolen property, includes within its terms all persons who receive stolen property
    
      knowing it to have been stolen. No exceptions, either as to description of the person committing the crime, or as to the intent with which the property is received, are made by the statute.
    2. Same—Pleadings—When allegation of indictment sufficient.
    The allegation in the indictment that the defendant criminally received the property in question is. as here used, the equivalent of “feloniously" and constitutes a sufficient description of the criminal intent with which the property was taken.
    3. Same—Presumption of guilt—When it arises.
    The recent possession of stolen property by a person raises a presumption of guilt which may be considered by the jury, and in the absence of explanation by such person authorizes it to infer a criminal connection, with its acquisition. This presumption applies as well to the person charged with unlawfully receiving it as to one charged with its original taking. The presumption grows weaker as the time of possession receded from the time of the original crime, but the fact itself is only for the. consideration of the jury under all the circumstances of the case.
    4. Practice—Waiver of exception—What amounts to.
    The people examined a witness, and he was allowed to testify as to a. conversation held by him with one of the defendant’s witnesses who had previously been sworn, and testified that he had no conversation with said witness upon the subject referred to. The defendant’s witness had not been previously particularly interrogated as to the time, place and subject of the alleged conversation. The defendant took exception to the admission of said testimony, but afterwards recalled his witness and interrogated him particularly as to the alleged conversation. Held, that the admission of the evidence was error, but that by recalling the witness defendants waived the objection previously taken by them.
    Appeal from a judgment of tie supreme court, general term, fourth department, affirming • a judgment of. the court of sessions of Jefferson county, entered upon a verdict finding the defendant guilty of the crime of. receiving stolen property.
    
      E. O. Emerson, for app’lt; F. H. Peck, for resp’ts.
    
      
       Affirming 48 Hun, 617, mem.
      
    
   Ruger, Ch. J.

The defendant was indicted and tried in the court of sessions of Jefferson county for the crime of receiving a silver watch, knowing it to have been stolen, and was convicted of the offense. The general term affirmed the conviction and the defendant appeals therefrom ‘ to this court.

Direct evidence was given upon the trial to establish all of the essential elements of the crime charged, and the verdict of the jury must therefore be taken as conclusively establishing the guilt of the defendant, unless some exception taken on the trial was well taken by him. He contends, among other things, that the indictment is defective in not alleging that the property was received by him feloniously or' with criminal intent, and argues that the statute could not have been intended to include within its provisions a person who received such property with intent to restore it to its lawful owner, or for the purposes of its preservation.

It is generally sufficient to state an offense in the language used in the statute defining the crime. As said by Judge Folger in Phelps v. People (72 N. Y., 349): “If the indictment avers the offense as the statute defines it, the averment is sufficient. For the rule is that while in framing an indictment on a statute, all of the circumstances which constitute the definition of the offense in the statute itself, so as to bring the accused precisely within it, must be stated, yet no other description of the thing in which the offense was committed is necessary to be stated than that contained in the statute itself.” See Eckhardt v. People, 83 N. Y., 462. The same rule is also laid down in the recent case of People v. West, 106 N. Y., 293; 8 N. Y. State Rep., 713.

The section of the Penal Code defining the crime in question is quite broad, and includes within its terms all persons •who receive stolen property, knowing it to have- been stolen. No exceptions, either as to the description of the persons committing the crime, or as to the intent with which the property is received, are made by the statute. It declares that “a person who buys or receives any stolen property, knowing the same to have been stolen, is guilty of criminally receiving such property.” Penal Code, § 550.

f Conceding that a person who receives such property with a laudable intent is not guilty of the commission of the crime, and a proviso to that effect had been incorporated in the act, it would not have been necessary for the pleader to negative the exception in the indictment. The fact might have been a defense ; but it would be for the defendant to show that he came within the exception. Fleming v. People, 27 N. Y., 334; People v. West, supra.

The allegation in the indictment, that the defendant criminally received the property in question, is, as here used, the equivalent of “feloniously,” and constitutes a sufficient description of the criminal intent with which the property was taken. People v. Willett, 102 N. Y., 251; 1 N. Y. State Rep., 384. Even if it were necessary to negative the possibility of an innocent reception of. the property by the defendant, the statement that he criminally received it would, under the liberal rule of pleading now established, be a sufficient averment of the fact that he did so under circumstances constituting a crime. It is impossible to see how the defendant could have been prejudiced by the alleged defect; and we are of the opinion that, in any view, the case comes within the provisions of section 285 of the Code of Criminal Procedure providing that “ no indictment is insufficient * * * by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The defendant also alleges that the court erred in allowing the people’s witness, Spellicy, to testify to a conversation held by him with one of the defendant’s witnesses, who had previously been sworn, and testified that he had had no conversation with Spellicy upon the subject referred to. The objection was that the defendant’s witness had not been previously particularly interrogated as to the time, place and subject of the alleged conversation.

There is no doubt but that this objection was well taken, and if the case had rested here, and the defendant had elected to stand on his exception, we are of the opinion that it would have been fatal to the conviction. The defendant, however, did not do so, but chose to recall his witness and interrogate him particularly as to the alleged conversation.

The witness then gave evidence tending to contradict the .version of the conversation testified to by Spellicy. We think this constituted a waiver of the objection previously taken by the defendant. He voluntarily elected to put his witness in the position of contradicting the testimony of Spellicy and going to the jury upon the question of veracity ,as between the respective witnesses, and cannot, under the circumstances, complain that his witness wras unfairly subjected to a contradiction which might have been obviated if his attention had been previously called to the particular subject. The witness thus had ample opportunity to correct the evidence previously given by him or to explain the apparent inconsistency existing between his testimony and his former statements. Gaffney v. People, 50 N. Y., 423.

It was said by Chief Judge Church in Sloan v. N. Y. C. R. R. Co. (45 N. Y., 125), that “the witness sought thus to be impeached should have an opportunity of making an explanation in order that it may be seen whether there is a serious conflict or only a misunderstanding or misapprehension; and for the purpose of eliciting the real truth, the court may vary the strict course of Examination.”

The jury here had before them all of the statements of both witnesses as to the alleged conversation and could fairly estimate the weight to be attached to the testimony given by them respectively upon the subject.

• The whole object of the rule excluding contradictory statements made by a witness unless he has previously been interrogated thereto, was thus attained, and we do not think the defendant was unfairly prejudiced by the course pursued at the trial.

The exceptions to the requests to charge were neither of them well taken.

There is no question but that the recent possession of stolen property by a person raises a presumption of guilt which may be considered by the jury, and, in the absence of explanation by such person, authorizes it to infer a criminal connection with its acquisition. This presumption applies as well to a person charged with unlawfully receiving it, as to one charged with its original taking. If it .raises a presumption of guilt as to the more serious erimej much more should it be evidence of the guilt implied in the lesser offense. Knickerbocker v. People, 43 N. Y., 179; Stover v. People, 56 id., 316.

The presumption grows weaker as the time of possession recedes from the time of the original crime; but the fact itself is one for the consideration of the jury under all the circumstances of the case.

There was no element of the crime which called for the application of any rules relating to circumstantial evidence, and the court committed no error in declining to charge thereon as requested by the defendant.

The judgment should therefore be affirmed:

All concur.  