#### State vs. Jacobs.

*January 11*

April *30, 1918.*

*Criminal law and, practice: Receiving stolen goods: Proof of guilty knowledge: Punishment for second offense: “Sentenced to imprisonment.1’*

1. In a prosecution under sec. 4417, Stats., for knowingly receiving stolen property it was proper to instruct the .jury that defendant was guilty if he purchased the property “under such facts and circumstances that he ought to have known” that it was stolen.

2. Sec. 4738, Stalls., authorizing severer punishment for a second offense, applies where there had been a former conviction for an offense punishable by fine only; and one who had, as required by sec. 4633, been sentenced to imprisonment until his fine should be paid, had been “sentenced to imprisonment” within the meaning of said sec. 4738.

RepoRted from tbe municipal court of Milwaukee county: W. J. TurNer, Judge.

*One question answered in the negative; the other in the affirmative.*

Tbis is a proceeding under sec. 4721, Stats., to secure from tbis court answers to two questions certified by tbe municipal court of Milwaukee county.

Tbe defendant was found guilty by a jury in tbat court on a charge of knowingly receiving stolen property. Tbe information charges tbe defendant with tbe commission of four distinct offenses under sec. 4417, Stats., and also, as a fifth count, under see. 4738, a prior conviction of an offense on February 1, 1916. Tbe defendant filed a plea in abatement to tbis information, in which, among other things, be raised tbe question as to whether or not tbe facts stated in tbe fifth count of tbe information were sufficient to constitute a prior sentence under sec. 4738. The plea in abatement was overruled without prejudice, whereupon tbe defendant pleaded not guilty to tbe first four counts of tbe information and entered a plea of guilty to the fifth count.

Tbe jury found tbe defendant guilty on tbe first, third, *300v and fourth counts of tbe information, acquitting him on the second count. The defendant then moved for a new trial and in arrest of judgment and requested the trial judge to certify certain questions to this court concerning the sufficiency of the count as to the prior conviction and sentence and of the correctness of the trial court’s instructions, to which exception had'been taken and filed.

The questions reportéd are:

(1) Did the court err in its charge to the jury in instructing the jury in connection with its entire charge as follows:

“The law is that if the defendant did purchase the stolen property from Mr. Euog knowingly, or under such facts and circumstances that he ought to have known it, in other words, that he is charged with notice of it, that then he would be guilty of the offense charged against him.”

(2) Did the following count in the information charge facts sufficient to constitute a prior conviction of said defendant under secs. 476 6, 4737, and 4738 of the Statutes, namely:

“And I, Winfred C. Zabel, district attorney for Milwaukee county, aforesaid, hereby further inform the court that on the 1st day of February, 1916, in the municipal court of the county of Milwaukee, Wisconsin, the above named defendant, *Harry E.*Jacobs, was convicted of the crime of buying stolen property and upon said conviction was sen-. tenced by said court to pay a fine of one hundred (100) dollars and costs, or in default thereof to be committed to the house of correction of Milwaukee county until said fine and costs be paid; but such imprisonment not to exceed in all a period of six months, which said conviction still remains of record and unreversed.”

For the plaintiff there was a brief by the *Attorney General, Winfred G.*Zabel, district attorney of Milwaukee county, and *Arthur H.*Bartelt, assistant district attorney, and oral argument by *Mr. Zabel*and *Mr. Bartelt.*

For the defendant there was a brief by *Thomas E. Leahy*and *Herbert B. Manger*of Milwaukee, and oral argument by *Mr. Manger.*

*301The following opinion was filed February 5, 1918:

SiebecKEe, J.

It is contended by tbe defendant respecting the first question certified that the part of the certified instructions to the jury declaring that the offense is proven if defendant purchased stolen “property under such facts and circumstances that he ought to have known it, in other words, that he was charged with notice of it,” is an incorrect statement of the law applicable to the case. It is a well recognized rule that proof of this offense may be made by circumstantial evidence. The certified question presents the inquiry whether proof of “facts and circumstances” showing the defendant “ought to have known” that the property he bought from Mr. Euog was stolen property constitutes proof of guilty knowledge under sec. 4411, Stats. The instruction of the trial court lays down an individual test of the defendant’s guilty knowledge under the facts and circumstances adduced in evidence. This rule is approved by the courts generally as a proper test of the sufficiency of evidence to show the fact of guilty knowledge in this class of cases. The court in *Huggins v.*People, 135 Ill. 243, 25 N. E. 1002, in speaking on the subject states: “It is sufficient if the circumstances were such, accompanying the transaction, as to make the prisoner believe the goods had been stolen.” Among the numerous cases sustaining this rule are: *State v.*Feiss, 14 N. J. Law, 633, 66 Atl. 418; *People v. Schooley,*149 N. Y. 99, 43 N. E. 536; *State v. Druxinman,*34 Wash. 257, 75 Pac. 814; *Comm. v.*Leonard, 140 Mass. 473, 4 N. E. 96. The first question must be answered in the negative.

The second question is whether the information charges facts sufficient respecting the former conviction of defendant, within the provisions of secs. 4136, 4131, and 4138, Stats., prescribing punishment for offenders previously con-. victed of offenses.

It appears that defendant was formerly convicted of buy*302ing stolen property and was sentenced by tbe court to “pay a fine of $100 and costs” and that be was sentenced to be committed to tbe bouse of correction until tbe fine and costs were paid, imprisonment, however, not to exceed six months. It is urged that tbe sentence to pay a fine and costs is not a sentence “to imprisonment” as contemplated in these sections providing increased severity of punishment for subsequent offenses. It 'has been held that tbe provisions of these statutes are a part of tbe criminal law regulating tbe sentence and judgment when persons are guilty of successive offenses. *Ingalls v. State,*48 Wis. 647, 4 N. W. 785; *Howard v. State,*139 Wis. 529, 121 N. W. 133. Tbe former conviction of defendant must come within tbe provision of sec. 4738, Stats., if any, which provides: “When any person is convicted of any offense punishable *only*by imprisonment in tbe county jail *or by fine,*or both,” and it is alleged and established on tbe trial “that be bad been before sentenced to imprisonment” as therein specified and that such sentence remains of record and unreversed, “such person *may be punished*by imprisonment” as provided in this section. It is claimed that tbe alleged former sentence of defendant “to pay a fine and costs” and that be be committed to tbe bouse of correction in default of payment of tbe fine and costs until paid, not exceeding six months, is not a “sentence to imprisonment” within tbe terms of tbe provision of this section of tbe statutes. Tbe language of tbe statute includes convictions of an offense “punishable only ... by fine.” If tbe statute is construed as defendant urges, then tbe words “or by fine” have no significance and drop out of tbe statute. This is not to be done if they can be given a meaning within tbe apparent intent of tbe legislative purpose to make them effective. Tbe terms of tbe section in their plain and obvious meaning include a former conviction of an offense punishable “by fine only” and must be so interpreted unless they are repugnant to other provisions of *303tbe statutes ou tbe subject. Tbe calls of tbe provision, that it must be alleged and established, in order to authorize tbe imposition of tbe severer punishment, “that be [tbe offender] bad before been sentenced to imprisonment,” are complied with by sentencing offenders punishable “by fine only” under tbe provisions of sec. 4633, Stats., which requires, “When a fine is imposed *as the whole*or any part of tbe punishment for any offense by any law, tbe court shall also sentence tbe defendant to pay tbe costs . . . and to be committed to tbe county jail until tbe fine and costs are paid or discharged.” This form of sentence must be imposed for all convictions which are punishable “by fine only.” Tbe terms of such punishment constitute a “sentence to imprisonment” within tbe legislative intent and meaning of the provisions of sec. 4138, Stats.

It is to be observed that tbe punishments under sec. 4138, Stats., are left to be imposed by tbe court in its sound discretion, and hence tbe claim that tbe severer punishment provided by these statutes was not intended to apply to tbe successive conviction for minor offenses punishable “by fine only” is not persuasive. Tbe statutes on tbe subject clearly manifest a legislative intent that tbe severer punishment prescribed for repeated offenses shall apply to conviction for offenses punishable *only by fine.*It follows that tbe count in tbe information certified to this court in tbe second question charges facts sufficient to constitute a prior conviction of tbe defendant under sec. 4138, Stats., and requires an affirmative answer.

*By the Court.*— We answer tbe first question “No.” We answer tbe second question “Yes.”

A motion for a rehearing was denied, without costs, on April 30, 1918.

OweN, J., took no part.