Engster v. State

Maxwell, Oí-i. J. The plaintiff was convicted at the June term of the district court of Franklin county for receiving stolen goods of the value of $35.00, and was sentenced to imprisonment in the penitentiary for three years. He now prosecutes a writ of error to this court. The verdict of the jury is as follows: “The State of Nebraska vs. Edward Engster. “We, the jury-in this cause, being duly empaneled and sworn, do find and say that we find the defendant Edward Engster guilty as charged, and the value of the property stolen and received is $35.00 thirty-five dollars, and we, the jury, do recommend your honor to be as lenient as the law will allow. “Wm. Weston, Foreman.” It appears from the testimony that in March, 1879, there was stolen from the residence of one Ulrich Sig: nor, in Franklin county, certain clothing valued by himself at a very large sum. In June following one John Grany was indicted for the larceny, and the plaintiff' for receiving the goods, knowing them to have been stolen. A nolle was entered as to the indictment against Grany, and he was the principal witness to secure the conviction of the plaintiff. It appears from Grany’s testimony that he was boarding with the plaintiff and that he and another stole the goods in question and secreted them for a week or ten days at [541] various places on the premises of the plaintiff; that in consequence of rain he removed them to the plaintiff’s cellar in his absence. Up to this point all the testimony concurs in showing that the plaintiff had no knowledge whatever that the goods were ón his promises. Upon his return home Engster was informed by Grany that clothing was in the cellar, but there is a conflict of testimony as to whether or not he knew it was stolen. There is no doubt, however, that he had reason to suspect that it was stolen, and he should have informed the authorities at once of the facts. Upon the sufficiency of evidence upon this point we express no opinion, as there must be a new trial by reason of a failure of proof upon another point. Section 116 of the criminal code under which the plaintiff was indicted is as follows:. “If any person shall receive or buy any goods or chattels of the value of thirty-five dollars or upwards that shall be stolen or taken by robbers, with intent to defraud the owner, or shall harbor or conceal any robber or thief guilty of felony, knowing him or her to be such, every person so offending shall be imprisoned in the penitentiary not more than seven years nor less than one year.” Mr. Signor, the prosecuting witness, called on behalf of the state to prove the value of the clothing, testified on cross-examination as follows: Q. Are you a judge of clothing? A. Yes, sir; of mine. Q. Are you a judge of the price of clothing? A. I guess I am. This witness in his testimony nowhere states facts showing a knowledge of the value of clothing; yet he was permitted to testify as to the value of the clothing which was stolen. O. A. Pierce, deputy sheriff, called on behalf of the [542] state, testified as follows: “I have worked in a general merchandise store; I think I am acquainted with the value of clothing.” He was then permitted to testify as to the value, although it nowhere appears that he had purchased or sold clothing, or knew anything of its value, and fixed the same at the sum of $57.00. On the part of the defense Wm. Stadolman was called, who testified that he was a merchant at Bloomington, and had been engaged in the business of selling ready-made clothing for twenty-five years, and then specifying the value of each article in detail the aggregate of which was $22.95. In this ho was corroborated by Mr. Bodien, a merchant engaged in the clothing business at Bloomington. A party who is permitted to testify as to the value of property must show by his testimony that he possesses knowledge as to such value, otherwise his testimony is more conjecture and is wholly unreliable. In an indictment where the value of the property must be or exceed $35.00 to constitute a felony, such value must be proved like any other fact upon which a conviction depends beyond a reasonable doubt. This is a material fact, without proof of which the prosecution must fail. The receiver of stolen goods at common law, knowing them to have been stolen, was indictable for misprision. But by statute, 3 and 4 W. and M. Ch. 9, the receiver was made an accessory after the fact. The statute, 5 Anne, Ch. 31, Sec. 5, confirmed that of William and Mary, and Sec. 6, as also 1 Anne, 2, Ch. 9, provided that when the thief could not be taken the receiver might be prosecuted separately for the misdemeanor. Under our statute the receiver may be proceeded against for felony as a substantive offense, whether the principal offender is punished or not. We express no opinion upon the propriety of discharging Grany, who seems to glory in his theft, [543] and whose guilt is beyond question, and the prosecution of the plaintiff upon what, so far as the record discloses, is very unsatisfactory evidence. The judgment of the district court is reversed and the cause remanded for a new trial. Reversed and remanded.