dissenting:
The Act of March 31,1860, sec. 109, P. L. 410, provides, “If any person shall buy or receive any goods, chattels, moneys or securities, or any other matter or thing, the stealing of which is made larceny by any law of this commonwealth, knowing the same to be stolen or feloniously taken, such person shall be guilty of felony,” etc. The very essence of this offense is “ knowing the same to be stolen or feloniously taken.” The defendant was indicted for larceny in the first count and for receiving goods knowing the same to have been stolen or feloniously taken in the second count. The evidence was insufficient to warrant a conviction of larceny, but there was evidence from which the jury might have convicted under the second count. The appellant has not printed the charge of .the court and therefore it ought to be assumed that the learned court correctly charged the jury as to what was necessary to warrant a conviction under the second count. The record shows that the jury found the defendant “ guilty of receiving stolen goods.” Assuming that the court *504correctly instructed the jury that the defendant could not be convicted under the second„ count unless they found that he received the property knowing the same to be stolen or feloniously taken, it seems clear to me that the jury was not convinced that the defendant knew the property was stolen.
If the verdict had been guilty in manner and form as charged in the second count no question could be fairly raised as to the sufficiency of the finding. But the jury did not so find. They were only willing to find that the goods had been stolen. This, I think, did not warrant the court in assuming that the jury meant to find a verdict of guilty of receiving goods knowing them to have been stolen or feloniously taken. The burden is on the commonwealth to convict a defendant beyond a reasonable doubt, and neither court nor jury is permitted to guess that a defendant is guilty of a felony.
The jury seems to have found a special verdict that the defendant was “ guilty of receiving stolen goods.” Suppose a case had been stated and submitted to the court averring that the defendant had received stolen goods, would it be contended by any lawyer that the court would have been justified in holding the defendant guilty of receiving the goods knowing the same to be stolen or feloniously taken? I think not and in my opinion this illustration convicts the court below of error.
Several cases have been cited in the majority opinion, but I do not see anything in these cases sustaining the court below in entering judgment against the defendant.
The defendant’s counsel moved the court in arrest of judgment and this motion was refused and an exception allowed. In my opinion the judgment ought to have been arrested.
Porter, J., concurs in dissent.