#### STATE v. GEORGE STATHOS.

(Filed 18 September, 1935.)

Receiving Stolen Goods A b — In order to conviction under O. S., 4250, it is necessary that defendant have guilty knowledge, express or implied.

In order for a defendant to be convicted of receiving stolen goods under the xn'ovisions of O. S., 4250, it is necessary that defendant have knowledge, express or implied, that at the time of the receiving the goods had been stolen, and a charge that such knowledge would be imputed to defendant if the circumstances at the time were sufficient to put a reasonably prudent man upon inquiry which would have disclosed the facts, is erroneous, the rule of the prudent man being applicable to civil actions but not to criminal prosecutions, and it being necessary for conviction that defendant himself have guilty knowledge, express or implied.

Appeal by defendant from *Pless, J.,*at January Term, 1935, of Eoksyth.

New trial.

Tbe defendant was tried and convicted upon a bill of indictment charging that on 21 December, 1934, be “unlawfully, wilfully, feloni-ously did receive and conceal stolen goods, to wit: a certain violin, valued at about $300.00, tbe property of one Elizabeth Hanaman, be, tbe said George Statbos, well knowing tbe same to bave been feloniously stolen, taken, and carried away, against tbe form of tbe statute in such case made and provided,” and from judgment of imprisonment appealed to tbe Supreme Court, assigning errors.

*Attorney-General Seawell and Assistant Attorney-General AiJcen for the Slate.*

*Ingle & Pucker for defendant, appellant.*

ScheNCK, J.

The appellant makes several exceptive assignments of error, but under the view we take of the case it is necessary to consider only that assignment which imputes error to that portion of the charge as follows: “If tbe State has convinced you beyond a reasonable doubt from tbe evidence that at tbe time be bought tbe violin tbe circumstances, facts, and tbe knowledge of tbe defendant were such as to let him know *or*to cause an honest man who intended to be reasonably prudent in bis business transactions to inquire further before be received tbe violin, and be failed to do so and took *the*violin without making-inquiry, although- in possession of such facts, then, gentlemen of tbe jury, if you should find those facts, and find them beyond a reasonable doubt, it would be your duty to render a verdict of guilty.”

O. S., 4250, under which tbe bill of indictment was drawn, makes guilty knowledge one of the essential elements of tbe offense of receiving *457stolen goods. This knowledge may be actual, or it may be implied wben tbe circumstances under wbicb tbe goods were received were sufficient to lead tbe party charged to believe tbey were stolen. However, while it is true that it is not necessary that tbe person from whom tbe goods are received shall state to tbe person charged that tbe goods were stolen, and while tbe guilty knowledge of tbe person charged may be inferred from tbe circumstances of tbe receipt of tbe goods, still it is necessary to establish either actual or implied knowledge on tbe part of tbe person charged of tbe facts that tbe goods were stolen. Tbe question involved is whether the person charged bad knowledge of tbe fact that tbe goods bad been stolen at tbe time be received them, and not whether a reasonably prudent man in the transaction of bis business would have gained such knowledge under tbe circumstances. The' test is as to tbe knowledge, actual or implied, of tbe defendant, and not what some other person would have believed from tbe facts attending tbe receipt of tbe goods. *S. v. Hamilton (S.*C.), 164 S. E., 639; *S. v. Alpert,*88 Vermont, 191; 53 C. J., 510-11.

While we recognize that there is a conflict in tbe authorities as to whether, in the’ absence of proof that tbe defendant actually knew tbe property was stolen, it is sufficient to sustain a conviction that at tbe time of receiving tbe stolen property tbe defendant bad knowledge of facts sufficient to satisfy a man of ordinary prudence and intelligence that tbe property bad been stolen, we are of tbe opinion that tbe knowledge of such facts is not sufficient to establish that tbe defendant did “receive any . . . property . . . knowing tbe same to have been feloniously stolen or taken,” wbicb is an essential element of tbe offense against wbicb tbe statute inveighs. Although it may be tbe rule in civil actions that knowledge of such facts as are sufficient to put a reasonably prudent man on inquiry is equivalent to notice, and that a defendant may be held to know that wbicb be would have known bad be exercised that degree of care wbicb a reasonably prudent man would have exercised under similar circumstances, such has never been declared to be tbe rule with us in criminal cases.

New trial.