The defendant in error was prosecuted and convicted for a violation of the following statute:
“Section 4417. Any person who shall buy, receive, conceal or aid in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall receive the same punishment as is hereinbefore provided for the stealing of such money, goods or property; and in any prosecution for such offense it shall not he necessary to aver or prove that the person who stole the same has been convicted.”
*83By the express language of this statute an essential element of the offense is that the defendant shall, at the time of his receiving or dealing with the stolen property, know that such property has been stolen. It is as essential that the jury shall, beyond a reasonable doubt, find that he had such knowledge at the time of his transaction with the property as they must that the property was theretofore stolen. Such guilty knowledge, or its equivalent, guilty belief, may be proven by circumstantial evidence, but it is not sufficient that such circumstantial evidence convinces the jury beyond a reasonable doubt that the defendant ought to have known that the property was stolen; it must go a substantial step further and satisfy them that he did know or believe.
The portion of the charge quoted above and of which the defendant in error has complained would warrant a jury in returning a verdict of guilty if they believed that the facts and circumstances of this particular case were such that the defendant in the exercise of ordinary diligence ought to have known that the automobile left with him by Reynolds and Higgins had been stolen.
That guilty knowledge, or its equivalent, guilty belief, is of the gist of this offense has been declared by many decisions, among others the following: People v. Tantenella (Mich.) 180 N. W. 474; People v. Lintz, 203 Mich. 683, 169 N. W. 918; People v. Grove, 284 Ill. 429, 120 N. E. 277; Weinberg v. People, 208 Ill. 15, 19, 69 N. E. 936; State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. n. s. 833, with note; 17 Ruling Case Law, 85.
It is argued in support of the charge given by thé court that it is warranted by what was said in the case of State v. Jacobs, 167 Wis. 299, 301, 166 N. W. 324. In that case, jjivolving a prosecution under the same statute as here, but a portion of the entire charge was printed in the statement of facts. The effect of the entire charge was to convey to the jury the understanding that there must be a finding by *84them of guilty knowledge, but that such guilty knowledge might be found from circumstantial evidence. This appears from the language in that decision (p. 301) in approving of the instruction giving the test of the defendant’s guilty knowledge under the facts and circumstances adduced in evidence. Such an instruction as is presented in this case and now passed upon was not before the court in the Jacobs Case, and that case therefore is not in point here. If the language in the Jacobs Case, supra, could be construed to warrant the giving of such an instruction as here before us, which would warrant a conviction if the jury are merely satisfied that the defendant ought to have known that the property was stolen, then such language must be deemed now modified.
It is urged that in any event such an error in the charge is not, under sec. 3072m, Stats., sufficient to warrant a reversal of the conviction and a new trial. The evidence in this case is of such a nature and dependent so largely upon the testimony of the thief that we do not feel justified in saying that; with such a substantial error in the charge to the jury, prejudice did not result to the defendant. His substantial rights were affected, and for that reason there must be a new trial.
Several assignments of error have been urged with reference to the admission of certain evidence concerning the meaning of an expression claimed to have been used by Reynolds at the time the automobile was brought to defendant’s premises and also as to a telephone communication alleged to have been had later in the afternoon of the same day between Higgins and defendant. We find no error in the admission of this evidence.
Affidavits were presented on the motion for a new trial as to certain statements alleged to have been made by Reynolds and not known to defendant or his counsel until after the trial. An examination of the same, however, satisfies *85us that none of them were of sufficient materiality to warrant overruling the trial court’s decision in that regard.
By the Court. — Judgment reversed.