State v. . Ray

Schenck, J. Upon the close of the evidence the appellant moved the court to-“quash the indictment” for the reason that he could not be tried in Pitt County, since all of the evidence tended to show that the property involved, if stolen, was stolen in Beaufort County, and if received by him, was received by him in Wake County. The motion was denied by the court, and such denial is made the basis of exceptive assignments of error. The assignments cannot be sustained. In order to sustain a conviction it is not necessary for the State to prove that the crime occurred in the county where the indictment is drawn, as, since the Act of 1844, “in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement.” C. S., 4606. S. v. Outerbridge, 82 N. C., 618. “Indeed, the offense, if proven, ‘shall be deemed and taken’ as having been committed in the county laid in the charge, unless the defendant, by plea in abatement, under oath, shall allege the transaction took place in another county, whereupon the case may be removed thither for trial.” S. v. Allen, 107 N. C., 805. An offense is deemed to have been committed in the county in which it is laid in the indictment unless the defendant shall deny the same by plea in abatement, which ordinarily must be filed not later than the arraignment. S. v. Oliver, 186 N. C., 329, and cases there cited. “If the offense had not been committed in that county the defendant waived the objection by not pleading in abatement.” S. v. Lemons, 182 N. C., *776 828. There was no plea in abatement in the ease at bar before arraignment, or at any time. In the absence of a plea in abatement, it was not necessary for the State in this case to invoke the provisions of C. S., 4250, to the effect that one charged with receiving stolen property knowing it to have been stolen may be tried in any county in which he shall have had such property in his possession or in any county in which the thief may be tried. There was evidence tending to show that within less than a month preceding the date of the commission of the crime for which the appellant was being tried, namely, 5 April, 1935, there had been other offenses of a similar nature committed by the appellant, and some of the other parties named in the bill of indictment, and that shortly after said date other stolen cigarettes were obtained from the appellant. This evidence was introduced by the State and admitted by the court over objection by the appellant, and is made the basis for exceptive assignments of error. There was no error in the admission of this evidence, since it comes within a well recognized exception to the general rule that a particular crime may not be proved by evidence of distinct substantive offenses. The exception is that when it becomes necessary to prove the guilty knowledge of the accused, evidence of similar independent offenses committed by him is competent to show such knowledge, or scienter. In S. v. Twitty, 9 N. C., 248, wherein the defendant was charged with uttering forged money knowing it to be forged, the court cited various authorities and said: “These authorities seem to go the length of proving that where an offense consists in a knowledge of the thing done to be unlawful, evidence may be given to bring home that knowledge to the prisoner, although a disclosure of other facts and transactions for which the defendant is not then on trial may be the consequence. . . . The quo ammo with which he passed the note is to be collected from the concomitant circumstances.” See, also, S. v. Walton, 114 N. C., 783; S. v. Pannil, 182 N. C., 838; S. v. Ferrell, 205 N. C., 640; Lockhart’s N. C. Evidence, par. 213. Guilty knowledge is an essential element of the crime with which the appellant was charged, the words of the statute creating it being, “such person knowing the same to have been feloniously stolen or taken, . . .” O. S., 4250. This exception to the general rule applies not only to prior transactions of the accused but also to his recent subsequent transactions of a similar nature. In S. v. Murphy, 84 N. C., 742, Ashe, J., cites Rex v. Davis, 6 Car. & P., 117, where, on a trial for knowingly receiving stolen goods, for the purpose of showing guilty knowledge of the defendant, evidence was admitted that other stolen goods were found at the same time in his possession, although they were the subject of an indictment then pending, and writes: “So, on a charge for sending a threatening *777 letter, prior and subsequent letters from the defendant to tbe person threatened have been received in evidence explanatory of the meaning and intent of the particular letter upon which the indictment is found.” The following from S. v. Jeffries, 117 N. C., 727, is cited and quoted in the brief of the appellant: “If such testimony be admissible to prove such intent, the ‘collateral offense’ sought to be proved must be confined to a time before or just about the time the offense charged against the defendant is alleged to have been committed.” The evidence of prior collateral offenses which the State introduced tended to prove that 26 cases of stolen Chesterfield cigarettes were hidden at Youngsville, in Franklin County, and that the appellant, in March, about two weeks before the date alleged in the bill of indictment as the date the defendant knowingly received stolen property, went with some of his codefendants and hauled them “to a little place back of his house” in Wake County. The evidence of subsequent collateral offenses which the State introduced tended to prove that on 8 April and 15 April, three and ten days, respectively, after 5 April, 1935, the date alleged in the bill of indictment, four cases of Chesterfield and Camel cigarettes (two cases on each date), with no consignee marks on them, were obtained from the appellant in Wake County. All of this evidence as to both prior and subsequent collateral offenses was sufficiently connected and contemporaneous with the crime charged to render it competent as tending to prove that the appellant knew that the cigarettes named in the bill of indictment were stolen at the time he received them. As to all the evidence relative to similar collateral offenses, the court was careful upon its admission in each instance to instruct the jury that it was admitted only to show, if it did show, the knowledge on the part of the appellant that he was receiving stolen property when he received Lucky Strike cigarettes from his eodefendants on or about 5 April, 1935. This instruction was also repeated in the charge. The appellant directs a number of exceptions to the court’s permitting the State to introduce, over his objection, parol evidence to establish the contents of Norfolk Southern freight car No. 20635, when there was evidence to the effect that the records of the railroad company showed such contents, upon the theory that such records were the best evidence of the fact sought to be proved. While it is generally agreed that writings themselves furnish the best evidence of their contents, the “best evidence rule” has no application here, since the fact sought to be proved was whether certain cigarettes had been put in a certain car, and had no relation whatsoever to the contents of any writing or record. No problem of primary and secondary evidence was presented. The making of a record did not prohibit a witness, who loaded the car and saw what went into it, from testifying as to its contents. *778 The appellant assigns as error that “the trial court did not at any time instruct the jury that the burden of proof was upon the State, nor did it explain to the jury the meaning of burden of proof.” In the light of the charge as a whole, this assignment is untenable. At the outset of the charge his Honor correctly defined the offense of feloniously receiving stolen property knowing it to have been stolen, and told the jury that the defendant was presumed to be innocent until proved guilty beyond a reasonable doubt, and carefully explained the meaning of the words “reasonable doubt,” and, later on in the charge, instructed the jury as follows: “Now, gentlemen, right there, if you convict Garvey Ray, you would have to be satisfied beyond a reasonable doubt, first, that he received the cigarettes at his filling station; and secondly, you would have to be satisfied beyond a reasonable doubt that at the time he received them he knew they were stolen goods. If you have a reasonable doubt about either one of these essentials, you would return a verdict of not guilty as to Garvey Ray.” This instruction, when read contextually with the rest of the charge, fully meets the only exception to the charge brought forward in the appellant’s brief. In the trial in the Superior Oourt we find no error. The motion in arrest of judgment lodged in this Court is denied. No error.