Opinion of the Court, per EARL, J. to the evidence. It has all been carefully read and considered, and we cannot say that, taking into account the character, position and appearance of the witnesses, and the facts and circumstances proved, the jury could not properly find that the property never actually went into the possession of the plaintiffs prior to the attachment. But if this paper was intended as a pledge of the property, there is a similar infirmity in plaintiff's position as a pledge could not become operative without delivery to the pledgee of the possession of the property; and here the jury may have found that possession was not delivered. A similar infirmity attaches to the plaintiff's case if the instrument executed on the 21st of July, 1879, be regarded simply as a bill of sale. Because it is provided in the statute that every sale, unless the same be accompanied by an immediate delivery and followed by an actual and continued change of the thing sold, shall be presumed to be fraudulent and void as against creditors of the vendor; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under the sale that the same was made in good faith and without any intent to defraud such creditors. (2 R. S. 136.) Here as we have before stated the jury were authorized to find that this sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold. And hence the presumption that it was fraudulent and void as against creditors was conclusive unless the plaintiff made it appear that the sale was made in good faith and without any intent to defraud creditors. The burden was upon him to make this appear, and we are of opinion that there was evidence from which the jury could find that the plaintiff had failed to show that the sale was in good faith and without any intent to defraud. We do not deem it important to detail the evidence; but we are satisfied that there was some evidence to be submitted to the jury upon this question of fraud. The disappearance of Toledo from the country immediately after the pretended sale leaving outstanding obligations, the con Statement of case. fused and contradictory statements of the plaintiff as to his purchase, the absence of proper entries in reference thereto upon any books, the subsequent treatment of the rifles by the plaintiff, the unexplained disappearance of them after they were replevied by the plaintiff and his apparent indifference in reference thereto, and other facts and circumstances were all to be weighed and considered by the jury. We think the judgment should be affirmed with costs. Judgment affirmed. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANDREW WELDON, Appellant. It seems that under the Penal Code (§ 550), in an indictment for receiving stolen goods, it is not necessary to allege in terms that the property was received by the accused feloniously or with criminal intent. It seems, also, that conceding a person who receives such property with a laudable intent, is not guilty of the crime, and even if a proviso to that effect had been incorporated in the statute, it would not have been necessary to negative the exception in the indictment; it would be for the defendant to show that he came within the exception. In such an indictment it was alleged that the defendant criminally received the property. Held, that this was the equivalent of feloniously, and constituted a sufficient averment of criminal intent. Also, held, that if the indictment was defective in this respect the case came within the provision of the Code of Criminal Procedure (§ 285), providing that "no indictment is insufficient * * by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant on the merits." Upon a criminal trial S., a witness for the prosecution, testified to a conversation with one of defendant's witnesses who had been previously examined and had testified that he had no conversation with S. on the subject. This was objected to on the ground that defendant's witness had not been previously particularly interrogated as to the time, place, etc., and it was received under objection. Defendant thereafter recalled his witness and interrogated him particularly as to the alleged conversation, and he contradicted the version of it testified to by S. Held, that while the objection was well taken and would have been fatal to the conviction if defendant had rested upon his exception, he waived the objection by recalling and examining his witness. SICKELS-VOL. LXVI. 72 Statement of case. The presumption arising from the recent possession of stolen goods, when unexplained, of a criminal connection with the theft, applies as well to a person charged with unlawfully receiving them as to one charged with the original taking. (Submitted December 3, 1888; decided December 18, 1888.) APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 17, 1888, which affirmed a judgment of the Court of Sessions of Jefferson county, entered upon a verdict convicting the defendant of the crime of receiving stolen goods, knowing them to have been stolen. The indictment charged as follows: "The grand jury of the county of Jefferson, by this indictment, accuse Andrew Weldon of the crime of criminally receiving stolen property knowing the same to have been stolen, committed as follows: "The said Andrew Weldon, on the seventeenth day of August, in the year of our Lord one thousand eight hundred and eighty-seven, at the city of Watertown, in the county of Jefferson and state of New York, did receive from Daniel Hoolihan, alias Daniel Jones, one silver watch of the value of $45, which watch had previously on that same day, at said Watertown, been stolen from the owner thereof, George Dawson, by said Hoolihan, alias Jones, and said Andrew Weldon did so receive said stolen watch, knowing the same to have been so stolen as aforesaid." The material facts are stated in the opinion. E. C. Emerson for appellant. When the language of a statute taken literally would lead to an absurdity or manifest injustice, it is the duty of the court to limit or restrict its operation. (People v. Davenport, 91 N. Y. 575, 585; People v. Comrs. of Taxes, 95 id. 554, 558, 559; Smith v. People, 47 id. 330, 337; People v. Lambier, 5 Denio, 9; Donaldson v. Wood, 22 Wend. 395, 397.) The exact and literal wording of an act may be rejected when it is plain it would not carry out the legislative intent. (Bell v. Mayor, etc., 105 N. Y. 139, Statement of case. 144; People v. Lacombe, 99 id. 44, 48.) A thing within the intent is as much within the statute as if within the letter, and a thing within the letter is not within the statute unless within the intent. (Bacon's Abridgment, tit. Statute, 1, 5; Holmes v. Carley, 31 N. Y. 289, 290; People v. Utica Ins. Co., 15 Johns. 358, 381.) Such intention may be collected from the cause or necessity of enacting the statute. (People v. Lacombe, 99 N. Y. 44, 49; Holmes v. Carley, 31 id. 289, 290; Pillow v. Bushnell, 5 Barb. 156, 159; People v. Utica Ins. Co., 15 Johns. 358, 380; People v. Spicer, 99 N. Y. 225, 233) Penal statutes must be construed strictly. (Bonnell v. Griswold, 80 N. Y. 128; Van Valkenburg v. Torrey, 7 Cow. 252.) If there is a reasonable doubt as to the construction, the defendant must be given the benefit of such doubt. (Chase v. N. Y. C. R. R. Co., 26 N. Y. 523, 525; Whitney v. Baker, 63 id. 62, 67.) To make out the offense of receiving stolen property, it must appear that it was received with a felonious or unlawful intent, or for the purpose of defrauding the true owner. (1 Colby on Crim. Law [6th ed.], § 1138; 2 Russ. on Crimes, 247; People v. Johnson, 1 Park. 564; Miller v. People, 25 Hun, 473; Chatterton v. People, 15 Abb. Pr. 148, 149.) Wherever a legislative enactment has received judicial construction, a re-enactment of substantially the same provisions. in a subsequent statute will be deemed an adoption by the legislature of such construction. (Davis v. Davis, 75 N. Y. 221, 225, 226; People v. Green, 56 id. 466, 475.) As this felonious or unlawful intent was an essential element to constitute the crime, it was necessary to aver its existence in the indictment by some apt descriptive words. (1 Bish. on Crim. Pro. [3d ed.] §§ 81, 84; 1 Barb. on Crim. Law, 320; Arch. on Crim. Plead. [4th Am. ed.] 38; People v. Allen, 5 Denio, 76; Sherwin v. People, 100 N. Y. 351.) If the defendant's guilty knowledge or intent is a substantial ingredient in the offense, it must be alleged. (King v. Jukes, 8 D. & E. 536; People v. Lohman, 2 Barb. 216, 218; 1 N. Y 379, 382; People v. D'Argencour, 32 Hun, 178; 1 Bish. on Crim. Pro. [3d ed.] $$ 522, 523.) If the act is criminal in its nature, an Opinion of the to the evidence. It has all b ered, and we cannot say that, i acter, position and appearance o. and circumstances proved, the j that the property never actually the plaintiffs prior to the attachme But if this paper was intended a there is a similar infirmity in plaint could not become operative without the possession of the property; and found that possession was not deliver A similar infirmity attaches to the instrument executed on the 21st of Ji simply as a bill of sale. Because it is that every sale, unless the same be accon ate delivery and followed by an actual an the thing sold, shall be presumed to be as against creditors of the vendor; and sl dence of fraud unless it shall be made to a the persons claiming under the sale that the good faith and without any intent to defra (2 R. S. 136.) Here as we have before stat authorized to find that this sale was not ac immediate delivery and followed by an actu change of possession of the property sold. presumption that it was fraudulent and creditors was conclusive unless the plaintif that the sale was made in good faith a intent to defraud creditors. The burden to make this appear, and we are of opinion evidence from which the jury could find that t failed to show that the sale was in good faith a intent to defraud. We do not deem it importa evidence; but we are satisfied that there was so be submitted to the jury upon this question disappearance of Toledo from the country im. the pretended sale leaving outstanding obligat. |