
    Catherine Shriedley v. The State of Ohio.
    1. An indictment for the substantive offense of receiving or buying stolen goods need not name the original thief.
    2. Under section 26 of the crimes act, making the receiving or buying goods that “have been stolen or taken by robbers” a misdemeanor, the receiving or buying stolen goods, knowing them to have been stolen, with intent to defraud the owner, is a crime within the meaning of the section, though they were not stolen by “ robbers."
    
    3. Where, in the transhipment of goods from one car to another, “ check-slips” are 'made, in the regular course of business, showing the number of the cars and the descriptive marks of the goods, such “ check-slips” are admissible in evidence, with the testimony of the witness showing that they were truly made by him, and that the goods were marked and shipped as thereby indicated, the witness then having no other recollection of the transaction in question.
    4. Upon the trial on an indictment for receiving and buying certain stolen goods, knowing them to have been stolen, evidence that other goods, known to have been stolon, were previously received and bought by the defendant of the same thief, is admissible for the purpose of showing guilty knowledge, on the part of the accused, that the goods, for receiving which he is charged, were stolen.
    5. Where, upon such trial, a witness testified in behalf of the state that the goods were received and bought of him by the defendant, knowing that they were stolen; and, on cross-examination, he denied that he had any knowledge whatever of a letter, shown to him, purporting to be written by him to the defendant, stating that he knew nothing against the accused relating to the transaction: Held, that, for the purpose of impeaching the witness, the letter might be given in evidence by the defendant, on making prima facie proof that it was written at the dictation of the witness, and was in fact sent by him to the defendant.
    Error to the Court of Common Pleas of Lucas county.
    The case is sufficiently stated in the opinion of the court.
    
      J. R. Tyler, for plaintiff in error:
    By the motion in arrest of judgment, drawn and filed as ¡provided in section 195 of the Ohio- Criminal Code, the validity of the second count in this indictment is questioned.
    We claim:
    I. This count, in the indictment, should show either the name of the principal thief, or state that the goods were received from the thief, whose name is unknown. State v. Ives, 13 Iredell, 338; Wharton’s Am. Crim. Law (3 ed.), 681; Ib. 188; State v. Fox, 15 Vt. 22.
    Again, we think the second count in the indictment bad, because it does not state that the goods and chattels were stolen, or taken “ by robbers,” and that defendant knew that the same had been stolen or taken by robbers.
    
    There is in the text no comma or pause between the word “stolen” and the words “taken by robbers.” The plain reading is, “ stolen by robbers,” or “ taken by robbers;” the words “ by robbers ” applying to and qualifying both the word “ stolen” and the word “ taken.” Then we claim that the indictment must show that the taking or stealing was done by one whom the law terms a robber, or by robbers.
    Formerly, in the by-places of England and Europe, there lived and thrived by piracy and robbery outlaws and bandits. These outlaws followed the high seas and highways, taking from the traveler his goods — taking them, not secretly, nor by mere theft, but by violence and putting in fear, from his person and before his face. No careful attention to the safe-keeping of his goods, no locks or vaults, could protect him or his property. Individuals and common carriers were alike subject to their violence. These freebooters had their hiding places and their depositees, within whose secret doors and coffers they from time to time concealed themselves and their plunder, which were kept by their willing tools, who were equally avaricious, equally guilty, but not equally daring.
    It was to reach these fences, as they are now called — these depositees — that the first statute on the subject was framed. The same phraseology has been embodied into the various statutes, nearly verbatim, from 3 W. & M., 5 Anne, 7 and 8 Geo. 4, and so on, until it finds its way into our statutes. So when the statute says “stolen or taken by robbers,” it means just what it says — nothing more, nothing less.
    Again, the law of bailments fully states the distinction,, and common carriers are governed in their responsibility and liabilities by a different rule, in case of losing goods by robbery, than in case of mere theft. Story on Bailments (5 ed.), secs. 25-28.
    And we further claim that the proof should have established that the goods were taken by robbers, and that tlie defendant knew it.
    II. The evidence of the office men, tally-men, etc., who remembered no fact of their own knowledge, even after being refreshed by the tally-slips, ought not to have been admitted. This was founded on hearsay, was secondary in its nature, and incompetent even under the dóctrine of Moots v. The State, 21 Ohio St. 653, and 1 Greenl. Ev., sec. 437. See 1 Greenl. Ev., secs. 82, 99; 1 Phil. Ev. 185; Sussex Peerage case, 11 Cl. & Fin. 85, 113; Stapleton v. Clough 22 Eng. Com. L. & E. 276; Mima & Queen v. Hepburn, 7 Cranch, 290, 296; Dain v. Wood, 1 Wheat. 6, 8; Rex v. Griswell, 3 Term, 707.
    The rules of evidence in civil and criminal cases are the same. Attorney-General v. Le Marchant, 2 D. & E. 201, note 2; State v. Rawls, 2 Nott & McCord, 333.
    If a custom be claimed, more than one witness must be-produced. 23 Ill. 566; 2 Greenl. Ev. 226.
    III. The witness, Rapp, was allowed to testify to a sale of other goods, to wit, another carpet, to defendant by him after the sale of the goods mentioned in the indictment, for' the purpose of showing seienter or guilty knowledge. This was error. Com. v. Horton, 2 Gray, 354; Rex v. Tanner, 4 Car. & Payne, 413, note a; 3 Greenl., sec. 15, note 11; Rex v. Odely, Dennison’s Crown Cases, 264; 5 Cox’s Crim. Cases, 210; 4 Eng. L. & E. 572. Proof that the stolen property was found in defendant’s possession, is not in itselt evidence of receiving. Tiffany’s Crim: Law of Michigan, 487, and cases cited.
    
      The court will presume that it prejudiced the defendant. Lowe v. Lehman, 15 Ohio St. 179.
    IV. The court erred in refusing to admit the testimony of Charles Drewyer to contradict Rapp as to his conversation with Hanks. 1 Greenl., sec. 444; Phil. & Am. on Ev. 904, 905; 2 Phil. Ev. 447; Allen v. Leach, 10 Ohio St. 287; People v. Austin, 1 Parker, 154; 25 Maine, (12 Shep.) 350; Legg v. Drake, 1 Ohio St. 292; Lee v. The State, 21 Ohio St. 151.
    V. The next error of which we complain is the exclusion from the consideration of the jury of the letter marked .exhibit “ E.”
    The letter not only shows that an undue influence was 'being brought to bear by the detectives Kavanagh and Mahon upon this boy Rapp, as to his testimony; but it contains a plain statement that he “ knows nothing about the. carpet,” and that he “ can’t say anything to hurt the defendant in the trial.”
    
    If this letter was written by Rapp, or by his orders, with his knowledge of the contents, and was sent out to defendant, the defense had the right to it for what it was worth to the jury. Of its effect on the jury, that was a question for the jury alone.
    VI. As to the sufficiency of the evidence to sustain the verdict, we say: the case of the state depends upon Rapp alone, and he — an accomplice — is not only not corroborated, but is contradicted by the other witnesses. Hence the verdict should not stand. 10 Ohio St. 304, 305; 9 Cowen, 707; 1 Greenl. Ev., secs. 379, 380.
    
      Frank H. Hurd, on the same side:
    The court allowed evidence to be given by the state of the receipts of other stolen goods by the defendant before the act charged in the indictment.
    It will be observed that the goods so proven to have been .received by the defendant, were not goods claimed to have been stolen at the same time as those described in the indictment, but admitted to have been taken at a prior time, ¿and under circumstances, doubtless, entirely different from those shown to have surrounded the act for which the defendant was on trial.
    If such evidence be admissible, it must be upon one oí the following grounds:
    1. Either that the defendant must be guilty of the offense charged in the indictment, because she had been guilty of similar offenses before.
    2. Or that the fact of her having been guilty of such offenses before would tend to show her to be a person of bad reputation, from which her guilt might be more readily inferred.
    3. Or that the defendant, because she had received stolen goods before from the thief described in the indictment, must have known that the goods for the receipt of which she was on trial had likewise been stolen.
    As to the first ground suggested upon which the evidence' might be admitted, it is scarcely necessary to say a word. There.is no principle better established in the law of evidence than that each act of a criminal nature must stand by itself.
    Besides, ordinary human experience shows that what a man has once done affords no evidence as to what his subsequent conduct may be. Barton v. The State, 18 Ohio, 223.
    As to the second ground on which such testimony might be admitted, this rule is expressed and approved in the case of Barton v. The State, supra.
    
    
      “ On the part of the prosecution, the general bad character of the defendant can not be proved when he offers no evidence of character; much less can particular acts of his be proved of which the record gives him no notice, and which he, therefore, can not be expected to meet.” See also Roscoe’s Crim. Ev. 98.
    As to the third ground :
    How does such proof tend to show guilty knowledge? If at all, it must be either (1) by showing that the receiver had acquired by the prior receipts such a habit of mind as to be able intuitively, upon goods being brought to him, to-determine whether they had been stolen or not, or (2) by showing that the state of the dealings between the thief and receiver, as established by the prior acts proved, had been such as to give the receiver good ground to presume that the property had been stolen.
    The first proposition, I think no one would seriously argue.
    Frequent receipts of stolen goods by one person may inform thieves where they can dispose of their ill-gotten property, and may familiarize the receiver with thieves; but such receipts, prior to any particular act under investigation, can not furnish the least information as to the mode in which the goods, the subject of such investigation, were acquired.
    It may be urged, as above suggested, that such proof discloses such a state of dealings between the thief and receiver as should give the latter good ground to presume that the goods offered had been stolen.
    To this if may be said: 1. That all that is claimed from this theory is, that the receiver might presume that the goods had been stolen. But no one would seriously ask that an accused party should be condemned upon proof which only gives rise to a presumption, and falls far short of producing conviction.. 2. The principle suggested not only applies in cases where the prior receipt is from the one alleged to have been the thief in the indictment, but in all cases of receipts of stolen goods, without regard to the person from whom they have been received. Consequently this proof could as well be given of a receipt by defendant from a stranger, with whom that may have been the only transaction, and from which nothing could be presumed as to the manner in which the thief named in the indictment acquired the goods in controversy. 3. The knowledge sought to be proven against the defendant is, that Rapp stole the goods mentioned in the indictment, for it is not claimed that they were stolen by any one else. What if Rapp had sold her stolen goods before, which she knew to have been stolen? Could he not have acquired these goods honestly ? The fact that he had once been a thief was no evidence that he was a thief at that time. How, then/at the moment of the receipt, could her former dealings with Rapp inform her that the goods then offered her were stolen?
    It is true that,many text writers have laid down a doctrine somewhat at variance with the view I now urge. 2 Russell on Crimes, 251; Roscoe’s Crim. Ev. (3 ed.) 875; Wharton’s Crim. Law (3 ed.), 677. But in Devoto v. Commonwealth, 3 Met. (Ky.) 417, the evidence admitted related only to other stolen goods fouud in defendant’s possession at the time of the discovery of the goods described in the indictment.
    And, in the foregoing authorities, the doctrine on this point is variously stated; and, in the case of Rex v. Dunn & Smith, 1 Moody’s C. C. 146, which is regarded as the foundation of the rule admitting such evidence: 1. No testimony was admitted except as to receipts that were specified in the indictment, and defendant had full notice that proof as to them would be given by the prosecution. 2. The receipts were all of goods stolen from the same person, and this fact the court gives especial prominence to in admitting the testimony. 3. The evidence of the mere fact of receiving, whether from the prosecutor or from third parties, was withheld; and the jury was directed to consider only (1) that other goods of the prosecutor had been found in defendant’s possession, when the goods for which he was on trial had been discovered, and (2) that defendant had, before the time laid in the indictment, pledged or otherwise disposed of other stolen goods of prosecutor.
    The courts in England have never carried the doctrine :any farther. When asked to extend it, they have declined, and adopted the principle insisted upon in this brief. Rex v. Davis, 6 Car. & Payne, 177; Regina v. Mansfield, 1 Car. & Marsh. 140 (41 E. C. L. 82); 3 Archbold’s Crim. Prac. & Pl. 480; Regina v. Oddy, 5 Cox’s Crim. Cases, 210; 1 Phil. on Ev. 767, note 207; Bell’s case before Baker, recorder, 6 C. H. Rec. 97; M. Niff’s case before Radcliff, mayor, 1 C. H. Rec. 8; Wheeler’s Crifn. Cases, 203.
    
      
      J. D. Ford, prosecuting attorney, for the state:
    1. The verdict is fully sustained by the evidence.
    2. In admitting the testimony of Smithson, Scholtz, Norris, Cornwall, and Faircloth, the court below did not err The ruling is sustained both by authority and upon principle. Moots v. State, 21 Ohio St. 653.
    Where, at the time of the transaction, the witness records in writing, in the usual course of his business, his acts touching the package or article, while in the multitude of business the act passes from his memory, the unchanging written record of the acts remains as a true expouent of the act. Of the record, the witness can speak from seeing it in his own handwriting, and the record thereby speaks of the act; .and adapting the language of the court in Moots v. State, the entries and the oath of the witness supplement each -other. The paper was really a part of the oath.
    3. As to admission of evidence touching the second piece of carpet, it is a full answer to objections urged on that point m argument of counsel, that the indictment described two pieces of carpet; and just as soon as the evidence disclosed the fact that they were received at different times, an objection was made by attorney for defendant, and an election made by the state to confine its testimony to the larger piece of carpet. Defendant not insisting or even asking that the testimony which established the facts that the carpets were sold at different times, and which included all this testimony relating to the second piece of carpet, except what defend.ant in the court below drew out on cross-examination, be ruled from the jury, and having quietly acquiesced in the testimony, and by their own cross-examination drawn out a large portion of the testimony on that point, can not now come into this court and urge that as ground for a new trial. To allow this would be to allow a defendant to lie quietly by until he thought the state was entrapped into, evidence to his prejudice, and when opportunity for correction is passed, assign it as ground of prejudice. The defendant in the court below should have presented her grievances to the court, and asked that the testimony be wrested from the jury. Nothing of this kind was done.
    4. The court below properly excluded the letter, .exhibit E, for -the good reason that there was no evidence-establishing the fact that Rapp ever wrote the letter in question, knew what was its contents, or ever dictated the-same; and there were many chances that the letter in the-hands of the several inmates of the jail through which it passed, may have been a gross fraud upon him.
    5. The attempt to impeach Rapp by traveling outside of the material facts of the case, and asking him (Rapp) if he-had not told Dryer that Hanks had told him (Rapp) sound so, was properly checked by the court. They asked Rapp and got his answer, and, by well-known rules of evidence, were bound by it. What Hanks had told Rapp was immaterial to the issue.
    As to the question raised upon the motion in arrest of judgment, it is sufficient to say that the indictment is in-accordance with the most approved forms, under this section of the crimes act, and which has for many years, in all the courts of this state, been recognized as meeting the requirements of the statute. That it was intended to apply to goods or property only which was stolen by highway robbers, can not be urged with much tenacity.
    One entire brief of counsel for plaintiff in error (that of Mr. Hurd) is devoted to the introduction of testimony as-to receipt of other stolen goods by the defendant. We rest with confidence upon the learning and research of such, law-writer's as Roscoe (Cr. Ev. 873, ed. 3), Russell (R. on Crimes, 251), Whart. Am. Cr. L. (3 ed.) 677. See also Devoto v. Commonwealth, 3 Met. (Ky.) 417.
   Day, J.

The plaintiff’ in error was tried and convicted under the following indictment:

“ Catherine Shriedley, on the 26th day of April, in the-year 1872, at the county of Lucas aforesaid, forty-eight yards of carpeting of the value of seventy-seven dollars;twenty-three yards of carpeting of the value of thirty-seven dollars, the goods, chattels, and property of the Lake' Shore and Michigan Southern Railway Company, a corporation then and there being, lately before feloniously stolen, taken, and carried away, unlawfully and feloniously? did receive, bay, and. conceal, with intent thereby to defraud the said Lake Shore and Michigan Southern Railway Company, the owners thereof, she (the said Catherine Shriedley) then and there well knowing said goods, chattels and property to have been feloniously stolen, as aforesaid, against the peace and dignity of the State of Ohio.”'

The validity of the indictment was questioned, by a motion in arrest of judgment, on two grounds : First, that the name of the thief from whom the goods were received is not shown, nor that his name is unknown; second, that it does not show that the goods were “ stolen or taken by robbers.”

As to the first point, it is only necessary to state that it is-settled, “ as the general doctrine, that an indictment for the substantive offense of receiving stolen goods need not name the original thief.” 2 Bish. Cr. Pro., sec. 927, and numerous authorities there cited.

The second point arises upon a construction of the statute on which the indictment is founded. The statute is as follows:

“ That if any person shall receive or buy any goods or chattels, of the value of thirty-five dollars or upward, that shall have been stolen or taken by robbers, knowing the same to be stolen or taken by robbers, with intent to defraud the owners ; or shall harbor or conceal any thief or robber, knowing him or her to be such; every person so offending.shall be deemed guilty of a misdemeanor,” etc.

It is claimed that, as there is no pause between the word “ stolen ” and the words “ taken by robbers,” the words “by robbers'” apply to both the word “stolen” and the word “ taken,” and that therefore the averment in the indictment must be that the goods received were “stolen by’ robbers,” or “ taken by robbers.”

This construction of the statute does violence to the evident legislative meaning and intent. It is based solely on the punctuation, which may always be disregarded, or made to conform to the clear meaning and intention of the statute. It is entirely clear that the legislature intended, by this statute, to do more than.punish the fraudulent receiving or buying of such goods only as were taken from the person of another by violence or putting him in fear. Both the reason and language of the statute require a broader construction. It was as much the legislative intent, by the first clause of the statute, to make the receiving of stolen goods a crime, as it was, by the next clause, to make it a crime to harbor or conceal a thief; and it can not be doubted but that the concealment- of a thief is a crime under this statute, though he may not be a robber.

The question would doubtless never have arisen had there been a comma inserted after the word “ stolen,” where it first occurs in the statute, thereby rendering the meaning too obvious for doubt or cavil.

It follows that the court did not err in overruling the motion in arrest of judgment.

For the purpose of identifying the carpeting found in the possession of the prisoner, and showing that it was stolen from the cars, of the Lake Shore and Michigan Southern Railway Company, evidence was offered tending to show ¦that the carpeting was purchased in New York, to be forwarded by rail to the purchaser in Chicago; that it was put on the cars in Jersey City; that it was duly transferred from car to car, and placed on the ears of the Lake Shore .and Michigan Southern Railway Company, and that it never arrived in Chicago. For the purpose of showing that the carpeting was placed on the cars and regularly transhipped from one car to another, until placed on the car from which it was claimed to have been stolen, “check-slips,” containing the number of the car to which the carpeting was transferred, and the descriptive marks on the goods, were offered in evidence, on the part of the state, together with the testimony of a witness at each transhipment, that, in the regular course of the business, it was the duty of the one placing goods in the cars, to call the description of the goods; that it was the duty of the witness to check all freight, so called, to him; that all the goods so checked went into the cars -in his presence; that he had no recollection of the. carpeting, or of the “ check-slips,” but they were made'in the regular course of business, in his own handwriting, at the time the goods must have passed into the cars. The counsel for the prisoner objected to the admission of this testimony, together with the “ check-slips,” in evidence; but the objection was overruled, and they were permitted to be given to the jury. Upon exception to this-ruling, the question is made whether the “ check-slips,” in connection with the testimony offered, were admissible in evidence.

The question is not whether the “ check-slips,” with the testimony of the witnesses by whom they were made, were alone sufficient to identify and prove the transhipment of the carpeting in question; but did the evidence tend to establish these facts? and was it of a character that might be admitted for what it was worth. The “check-slips” were made in the usual course of business, and were a part of the transaction in transferring the carpeting from one car to another. They were made for the purpose of identifying the goods and evidencing their transhipment, and were made from what was done in the presence and under the observation of the witnesses who made them; so also were the “ calls ” of the descriptive marks of the goods, by their assistants, in the usual course of the business; and the slips so made were received and acted upon by all parties engaged in the business of transporting the goods.. Doubtless the testimony of the “caller,” that the goods and marks were correctly “called,” would much strengthen the evidence; but, while that would also be admissible, we think, upon the authority of the case of Moots v. The State, 21 Ohio St. 653, that the court did not err in admitting the - evidence offered. In this ease, as in that, in each instance, the entry made by the witness at the time, and as a part of the transaction, and his oath supplement each other. The "check-slips,” in this case, like the. book in that, were really part of the testimony of the respective witnesses, and were, therefore, admissible with it in evidence.

Evidence having been given on the part of the' state, tending to show that the property mentioned in the indictment, had been stolen from the cars of the Lake Shore and Michigan Southern Railway Company; that one Charles Rapp had stolen it from the.company and sold it to the defendant under its value, informing her at the time that "the property had been stolen ; the court, against the objection of the defendant, permitted the state to give evidence that Rapp had previously sold to the defendant other goods which she knew were stolen. Did the court err in admitting this evidence? Clearly it was admissible for no other purpose, than as a circumstance tending to show that the defendant knew that the goods, for the receipt of which -,she was on trial, had likewise been stolen. The circumstance, of itself, may be of little value, for it does not necessarily follow that the goods mentioned in the indictment were stolen because the others were; but when taken in connection with other circumstances, such as that the goods mentioned in the indictment were sold under value, received at night, or concealed, it might strongly tend to fasten guilty knowledge upon the defendant. But, without discussing the question upon principle, I deem it only necessary to say, that we are constrained by the authorities to hold, that, upon the trial on an indictment for receiving certain stolen goods, knowing them to have been stolen, evidence that other goods, known to have been stolen, were previously received by the defendant from the same thief, is admissible for the purpose of showing guilty knowledge on the part of the accused that the goods, for receiving which he is charged, were stolen. The King v. Dunn, 1 Moody’s C. C. 146; Devoto v. Commonwealth, 3 Met. (Ky.) 417; People v. Rando, 3 Park. Crim. 335; Rex v. Davis, 6 C. & P. 177; 3 Greenl. Ev., sec. 15, and note; 2 Whart. Am. Crim. Law, sec. 1889; 2 Russ. on Crim. 251; Ros. Crim. Ev. 875.

In Regina v. Oddy, 5 Cox’s C. C., also 4 E. L. & E. 575, decided in 1851 by the English Court of Criminal Appeal, it -was held that, “ upon a charge of feloniously receiving stolen goods, the possession of other stolen goods, not connected with the immediate charge, is not admissible as evidence of guilty knowledge.” But that case, it is believed, has not been generally followed in this country, and, in 1871, was substantially abrogated in England by legislative enactment; we do not, therefore, regard the authority of that case sufficient to warrant us in overturning the practice long established, upon the weight of authority both in England and America.

The witness Rapp, having testified in behalf of 'the state, -that he, in company with another, had stolen the carpeting in question from the railroad company, and sold it to the defendant, was asked, on cross-examination, if he wrote a letter shown to him. He replied that he did not; that he could neither read nor write; that he never authorized it to be written ; that he never sent it to the defendant; that he never saw the letter before; that he never wrote, dictated, or sent a letter to the defendant; and that he knew two men, while in jail, by the name of McKay and Dodard, but at no time while there, had anything to do with them about this or any other letter.

The defendant proved that, while in jail, McKay was in the habit of writing letters for Rapp; that he wrote a letter in pencil on a fly-leaf of a book, apparently for Rapp, who -stood by his side; that he handed the letter produced, which was written on the fly-leaf of a book, to Dodard, with the request that he would give it to the defendant; and that it was handed by him to the husband of the defendant to be given to her. The letter purported to be written in jail, was written with a pencil, and addressed to the defendant. It contained statements somewhat explanatory of, and contradictory to the testimony of Rapp, given in chief for the state. The letter was offered in evidence on the part of the defendant, but, being objected to by the prosecutor, was rejected by the court. In this we think the court erred. The evidence tended to show that Rapp dictated the letter, and positively showed that he adopted it as his own, and sent it to the defendant. We regard this as showing, prima facie, that the letter was written for him, and at his dictation, and should therefore have been admitted. Of coarse the veracity of the witnesses, and the value of the letter, were all for the consideration of the jury. Every thing in the case depended on the credit to be given to the .witness Rapp, and the defendant was entitled to all the evidence in. the case legitimately bearing on the question of his veracity.

Since the judgment must be reversed, the other questions,., made on a motion for a new trial, become unimportant, and need not be further noticed.

Judgment reversed, and cause remanded for a new trial.  