Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Ocean County grand jury returned indictments against defendant charging him with receiving stolen property, in violation of N.J.S. 2A:139-1, and escape, in violation of N.J.S. 2A:104-6. The jury found him guilty on both charges and he was sentenced to an indeterminate term at the Bordentown Reformatory. The county judge denied a motion for a new trial. Defendant appeals the judgment of conviction.
On August 22, 1959 defendant, while driving a Plymouth sedan bearing a New York registration, was apprehended for going through a stop street in Brick Township, Ocean County. He was taken to the State Police barracks where it was ascertained that the sedan was a stolen motor vehicle.
While at the barracks defendant twice escaped from police custody, but was recaptured each time.
The defense to the charge of receiving stolen goods was that the car had been borrowed. Defendant testified that he had borrowed the sedan from a friend, John Carlson, a New York resident who lived in Belmar during the summer. Carlson was never called as a witness, nor was he located. As for the escape charge, defendant attempted to justify his flight, alleging that he had been threatened and struck by the police.
Defendant assigns three grounds for reversal: (1) it was plain error, affecting his substantial rights, for the court in its charge to preclude the jury from considering the defense that the sedan had been borrowed; (2) the introduction into evidence of defendant's prior convictions was error; and (3) the court erred in permitting the State to introduce into evidence the jail doctor's report book to rebut defendant's contention of police brutality.
The crime of receiving stolen goods under the Crimes Act of 1898 (c. 235, § 166) required proof of three things to establish guilt: that the goods were stolen, the accused received them, and at the time he received them he knew they were stolen. State v. Lisena , 129 N.J.L. 569, 571 (Sup. Ct. 1943), affirmed per curiam 131 N.J.L. 39 (E. & A. 1943). L. 1928, c. 187 (R.S. 2:164-1), a supplement to the 1898 act, and since amended by L. 1938, c. 348, eliminates the necessity of showing guilty knowledge by direct proof and in its place substitutes proof of possession from which guilty knowledge may be inferred. If the accused is shown to have received the goods or chattels within one year from the date they were stolen, such possession "shall be deemed sufficient evidence to authorize conviction unless the accused show to the satisfaction of the jury" that (a) the goods were a gift and not received from a
minor under 16 years of age, or (b) he paid the fair and reasonable value of the goods and they were not received from such a minor, or (c) he knew or made reasonable inquiry to determine that the seller was a regular dealer in such goods, or (d) and (e), that before or at the time of receiving the goods, he reported the transaction to the local police, and if the goods were received from a minor under 16, obtained police approval of the transaction. N.J.S. 2A:139-1.
The statute has been interpreted as creating a permissive presumption of guilty knowledge from the mere possession of stolen goods within the specified period. State v. Vigorito , 2 N.J. 185, 188 (1949); State v. Vitale , 35 N.J. Super. 568, 573 (App. Div. 1955). The statute does not shift the burden of proof, nor deprive a defendant of due process, but is merely an evidentiary rule whereby the accused must go forward with an explanation to rebut the permissive presumption. State v. Lisena , above, 129 N.J.L. , at pages 571-2.
In this case defendant did not attempt to explain his possession of the automobile in one of the five ways set out in the statute, so as to rebut the presumption of guilty knowledge which the Legislature created. Instead, as ...