Weinstein v. State of Indiana

Roll, J. —Appellant was charged by indictment of the crime of receiving stolen property under §2465, Burns 1926, §10-3017, Burns Ann. St. 1933, §2456, Baldwin’s 1934, §381, Acts 1905, p. 668. There was a trial by the court and judgment of guilty entered in accordance with the statute. Appellant filed a motion for a new trial which the court overruled and this ruling of the court is the only error assigned as error on appeal. The first thirty-two reasons assigned in his motion for a new trial pertain to the admission and rejection of certain evidence. The other four reasons relate to the sufficiency of the evidence to support the verdict, and that the verdict is contrary to law. It is charged that certain named persons stole a quantity of brass from the Baltimore & Ohio Railroad Company, and that appellant bought the same unlawfully and feloniously and with knowledge that the same had been stolen. The evidence in many respects is conflicting, but the following facts seem to be well established. Appellant was engaged as a junk dealer in the city of Indianapolis, and that representatives of the Baltimore & Ohio Railroad Company, hereinafter referred to as the railroad company, called on appellant a few weeks prior to the day in question and told appellant that the *366 railroad company had suffered recently from the loss of bell metal and brass by theft, and asked appellant if such metal had been offered’ for sale to him. He answered in the negative and was then told by the railroad representatives that if any one should offer bell metal or railroad brass for sale to hold them and call them by phone. Appellant said that they told him to buy the metal and call them. That these men, Mitchell and Delaney, who were railroad detectives, left their names and telephone number with appellant. That on May 18, 1931, two persons by the name of Sylvester and Orville Able (under an assumed name) appeared at appellant’s place of business in a Ford car with some railroad brass and offered to sell the same to appellant. Martin Weinstein, son of appellant, was in appellant’s place of business at the time and heard the conversation between his father and the Abies. That he immediately went across the street for the purpose of calling Mitchell and Delaney, but he was unable to find their telephone number in the directory. He came back and obtained the telephone number and returned to the phone. Some woman answered and reported that Mitchell and Delaney were out to lunch. The evidence further shows that appellant obtained the license number of Abies’ Ford car and made a memorandum of it. That appellant purchased the brass from the Abies, and in the afternoon took it to the place of business of one J. Solotken, as he says, for safe keeping. Appellant testified that on the evening of May 18, 1931, he made out a report to the police department of the purchase of this brass and reported thereon the license number of the Ford automobile that was being used by the Abies, and that this report was placed in an envelope properly addressed and stamped, and given to the girl that worked in the office of J. Solotken for the purpose of placing *367 the same in the mail. This girl was a witness and testified that she placed this letter in the mail along with other letters. The state’s witnesses testified that the police department did not receive this report from appellant through the mail, but that about three o’clock in the afternoon of May 19, they found the report in a box kept for that purpose in the corridor of the detective headquarters. It was shown in evidence that two city police (Russell and Staggs) called on appellant at his place of business on May 19 in regard to the theft of this brass, and that appellant at that time gave them the license number of the Ford car. That in the afternoon of the same day the two railroad detectives called upon appellant with reference to the same matter. Martin Weinstein was present and heard this conversation between his father and Mitchell and Delaney. While Martin Weinstein was on the witness stand he was asked concerning this conversation. The question was as follows: “Now on that occasion state whether or not anything was said by either of these men about the license number on the Ford coupe which you had reported to the police department.” The court sustained an objection to this question. Appellant made an offer to prove as follows: “We offer to prove by this witness that at the time of the conversation between Delaney, Mitchell and the defendant on the afternoon of May 19, 1931, that Mitchell or Delaney, or both, stated to the defendant that they had the license number of the Ford coupe of Sylvester Abel, 731-283; and we offer to prove further by this witness that his father had given the information to these two men, or to Russell and Staggs prior to that time.” It is appellant’s contention as stated in his brief that: “The Court erred in refusing to permit Martin Weinstein, called as a witness in behalf of Appellant, to testify about a conversation between the witness and George E. Mitchell and James Delaney, railroad detectives, concern *368 ing the license number of the thief’s automobile. (Tr., p. 215, 1. 10, to p. 221, 1. 6.) The State had previously gone into the subject (Tr., p. 136, 1. 24, to p. 137, 1. 15) for the purpose of showing concealment by the Appellant. The Appellant at the time objected and excepted to the refusal and offered to prove by the witness that at the time of the conversation with George E. Mitchell and James Delaney, the witness did not furnish the two railroad detectives with the license number or any other information concerning the transaction in question. Had the Court permitted the evidence offered to be given, the Appellant would thus have established a basis for an inference that the information had been obtained from the police reports mailed the same evening of the transaction. The State’s principal evidence for showing a concealment was the failure of Appellant to make a proper police report as required by an Ordinance of the City of Indianapolis, and Appellant was entitled to introduce evidence to show that this report had been made.” While the record shows that the offer to prove was made after the court ruled instead of before, and perhaps the question asked could have been answered by yes or no. Yet the record discloses that neither the court nor counsel for the state nor counsel for appellant were giving very much attention to the technical side of the record. The record also discloses that counsel and the court fully understood the real question presented and the court by his ruling excluded the evidence which appellant.was attempting to introduce, and that the court in fact ruled upon the merits of the question and we shall do likewise. It is clear that one of the determining factors in the case was whether appellant'mailed the report of the purchase of the brass to the police department .on the evening of May 18 or placed it in the box at police headquarters on the afternoon of May 19. The license num *369 ber was on the report, and therefore there was two sources of information as to the license number of the Able automobile. One from the appellant and the other from the report. If Mitchell and Delaney had the license number of the automobile at the time they were at appellant’s place of business on the afternoon of May 19, they obtained it either from appellant or some one to whom he had imparted this information (Russell and Staggs), or the report. Appellant by the offered testimony attempted to show not only that Mitchell and Delaney knew the license number, but that appellant did not tell them what it was. The lower court excluded this evidence on the theory that the state had not inquired about this particular conversation between appellant and Mitchell and Delaney. While the record shows that the state did not inquire about this particular conversation, it also shows that the state did introduce evidence to the effect that the report was not received through the mail, but was found in a box provided for that purpose about three o’clock p. m., May 19. Appellant should have been permitted to introduce such evidence as he had which tended to support his contention that the report was received by mail in due course. We do not mean to hold that the offered evidence would have established this fact, but we do hold that it was competent evidence and a link in the chain to support his theory and should have been considered by the court or jury in deciding the case. Without this evidence in the record appellant was unable to follow up with additional proof which he might have had to the effect that Mitchell and Delaney had not seen or communicated in any way with Russell and Staggs prior to the time of this conversation. Had this proof been made there would have been a strong inference that they must have received it from the report and that the state’s evidence *370 to the effect that the report was not at police headquarters before three o’clock on May 19 was untrue. The offered evidence was competent and material to appellant’s case and the offered evidence should have been admitted. It therefore constituted reversible error to exclude it. The state was permitted to introduce evidence over the objection of appellant that appellant had purchased other stolen property prior to the transaction here in question and that he knew at the time that the property was stolen. This, we think, the state had a right to do for the purpose of showing guilty knowledge, and it has been so held by this court. Beuchert v. State (1905), 165 Ind. 523, 76 N. E. 111; Carpenter v. State (1921), 190 Ind. 611, 131 N. E. 375; Goodman v. State (1895), 141 Ind. 35, 39 N. E. 939. For the error heretofore pointed out this cause is reversed with instructions to the lower court to sustain appellant’s motion for a new trial. Tremain, J., dissents with opinion.