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COMMONWEALTH v. MCFARLAND (06/14/73)

decided: June 14, 1973.

COMMONWEALTH
v.
MCFARLAND, APPELLANT



Appeal from judgment of Court of Common Pleas of Dauphin County, No. 865 of 1970, in case of Commonwealth of Pennsylvania v. Clifford D. McFarland.

COUNSEL

Nelson M. Galloway, for appellant.

Marion E. MacIntyre, Deputy District Attorney, with her LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Wright, P. J., Watkins and Jacobs, JJ., dissent.

Author: Spaeth

[ 226 Pa. Super. Page 139]

The only issue meriting discussion is whether the lower court erred in its charge with respect to the elements of the crime of receiving stolen property.

The evidence at trial was conflicting. Two witnesses testified that appellant did not know that the property in question had been stolen, but there was other evidence from which it could be found that he did. Appellant's argument is that the jury could not properly resolve this conflict because it was told in the charge (to which specific exception was made) that it could find appellant guilty "[i]f the Commonwealth has shown a collection of circumstances which would have led a reasonably prudent man to know that the goods had been stolen." According to appellant this permitted guilt to be found by an objective standard "of doubtful legality and constitutionality".

In a negligence case a defendant may be found liable if a hypothetical "reasonable man" would have had certain knowledge; whether the defendant in fact had that knowledge is immaterial. "Negligence is a departure from a standard of conduct demanded by the community . . . . The standard . . . must be an objective and external one, rather than that of the individual judgment,

[ 226 Pa. Super. Page 140]

    good or bad, of the particular individual. It must be the same for all persons . . . ." Restatement Torts, 2d, ยง 282 comment c.

By contrast, in a criminal case, with some exceptions not here pertinent, guilt is not objective but personal; the question is not what a reasonable man would have known but what the defendant knew; and the only pertinence in asking what a reasonable man would have known is in considering whether, because a reasonable man would have known it, the defendant did.

The applicability in a criminal case of the personal standard, and not the objective standard, was emphasized in Commonwealth v. Sendrow, 119 Pa. Superior Ct. 603, 181 A. 450 (1935). There the lower court had charged the jury that the question at issue before them was whether the defendant "knew positively that the goods were stolen and if he did not know that, whether, by reason of his knowledge of that business and the price of the merchandise, he knew that he was buying it at such a price below the market price, wholesale or retail, for that merchandise, as to put him on notice, to put him on inquiry, as to where the person who was selling him this merchandise could possibly get it and sell it for a price so much below the usual and regular price for that particular character of merchandise." Id. at 607, 181 A. at 451. Reversing, this court said: "Circumstances which would lead a reasonably prudent man to suspect that the goods had been stolen, or that would put such a person on inquiry as to the probable source of the goods he was buying may properly be considered by the jury in arriving at ...


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