COMMONWEALTH vs. HYMAN H. KRONICK

SHELDON, J. The defendant's counsel have not argued that any one of their first three requests for instructions should have been given as it was framed. But it is contended that under the charge of the judge the jury may have convicted the defendant without sufficient proof of a guilty knowledge on his part that the goods in question had been stolen; that they may have found that the defendant's knowledge of the previous larceny came to him only after whatever dealings he had with the goods in question. If this contention is well founded, manifestly the defendant has been aggrieved. There is only one crime described in R. L. c. 208, § 51, upon which this indictment was drawn, although that crime may be committed in either one of the specific modes described in that statute. Stevens v. Commonwealth, 6 Met. 241. Accordingly, as was held in that case, the

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defendant could be convicted upon this indictment if it appeared that he, knowing that the goods had been stolen, either bought or received them, or aided in their concealment. But it needs no citation of authorities to show that no offence is committed unless the defendant has that guilty knowledge at the time at which he commits the act either of buying, or receiving, or aiding to conceal the stolen goods, with the qualification, to which the defendant did not object, that if the goods have been actually stolen it is enough if the defendant believed this to be the case, even though he may not have had full and complete knowledge. Commonwealth v. Finn, 108 Mass. 466. Commonwealth v. Leonard, 140 Mass. 473, 478, 479.

But the defendant's contention does not appear to be well founded. The final instruction to the jury, given in the stead of what had been previously said upon that subject, was that the defendant could be convicted "if he either knew or believed this property was stolen property at the time it came into his possession, or at any time while it was in his possession he ascertained that it was stolen property and he undertook to deprive the owner of his rightful use of it." This plainly meant that the defendant's undertaking to deprive the owner of the use of the property must have been subsequent to his ascertaining that it was stolen property. This was enough; for the offence was complete although he may have received the property innocently, if he subsequently, with the guilty knowledge that it was stolen property, bought it or aided in its concealment.

The defendant argues, however, that this instruction was erroneous, because it substituted for the specific acts named in the statute a mere undertaking to deprive the owner of his rightful use of the property. But when the instruction is considered in connection with the evidence and the contentions made at the trial this argument is without merit. The evidence was that the defendant received the goods from the thief and kept them in his store for several days, and afterwards either purchased the goods from the thief and resold them to one Rosenthal or acted as a friendly intermediary in a sale made by the thief to Rosenthal. The judge had already fully explained the bearing of this testimony to the jury, and had stated to them the contentions of the parties. He had plainly said to them

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that it must be proved that the defendant either had bought, or received, or aided in the concealment of the property; and this never was withdrawn or modified. The final instruction now under consideration was expressly given with reference only to the defendant's knowledge of the previous larceny. The jury could not have understood that they were at liberty to convict unless the defendant either had bought, or received, or aided in the concealment of the stolen property, with a guilty knowledge that it was stolen property at the time he committed the specific act for which he was convicted.

Nor was the judge bound to give the defendant's fifth request [Note p289] in the language in which it was framed, or to call the jury's attention to one particular piece of the testimony. The question whether the sale was made to the defendant or to Rosenthal was left directly to the jury; and they were properly told that if the former alternative was proved, that is, if the defendant himself bought the goods, it made no difference whether he bought them acting for himself or as agent for Rosenthal. There is nothing in Commonwealth v. Remby, 2 Gray 508, inconsistent with this.

Exceptions overruled.