State v. Ward

Park, C. J.

On the trial of this case in the court below the defendant offered the following pleas:—

“To the said information the defendant here in court pleads and says that he is not guilty as charged in said information. And for a further plea in this behalf the defendant says that he ought not to be further prosecuted in this case on said information, because he says that the said supposed offence in said information mentioned was *436 committed, if ever, more than three years before the time when the defendant was required to plead or make answer' to the said information. And this he is ready to verify.”

The Attorney for the State objected to the receiving of these pleas, on the ground that it was double pleading, and on the further ground that, by the rules of pleading, the defendant could not plead in bar after pleading the general issue. The court ruled in accordance with this claim and rejected the pleas. Afterwards the defendant proved, under his oral plea of not guilty, all the facts stated in his plea in bar, and had the full benefit of them both in law and fact. He has, therefore, no ground for a new trial, even if the court was wrong in its ruling. But the ruling was strictly correct.

Chitty, in his Criminal'Law, sec. 435, says:—“At common law there was but one rule, which applied alike to civil and criminal proceedings, that the defendant must rely upon one ground of defence, and that pleading double was never to be admitted. This strictness, having been found very inconvenient, was relaxed as far as it relates to civil actions, by 4 Anne, ch. 16, secs. 4, 5, which enables the defendant, by leave of the court, to plead as many matters as he may think fit, but which contains a proviso that nothing contained therein shall extend to any indictment or presentment of treason, felony or murder, or any other like matter, or to any action upon a penal statute. Criminal proceedings therefore remain under the same restriction which existed as to all matters at common law, and no more than one plea ' can be put in, to answer any indictment or criminal information.” Archbold’s Pleading and Evidence, p. 74, states the same rule.

Wharton, in his Criminal Law, sec. 530, says:—“Double pleading is not allowable, and if autrefois acquit be pleaded with not guilty, the latter will be struck off.” The cases of State v. Copeland, 2 Swan, 626 , Hill v. The State, 2 Yerg., 248 , Nauer v. Thomas, 13 Allen, 572 , and Regina v. Strahan, 7 Cox C. C., 85, are to the same effect.

But it is said that, however this may be, the court erred . *437 in directing the accused to plead orally. The court simply decided that his pleas, as they were, could not be received, and inasmuch as he did not offer to amend by striking out one of the grounds of defence, but insisted on his right to plead as he had done, the court directed him to plead orally, guilty or not guilty. He pleaded not guilty, which virtually amounted to the striking out of the special plea in bar. We see no error in this. Nauer v. Thomas, supra.

Again, there was no merit in the special plea. It made no answer to the charge set forth in the information. The claim is that the defendant was not prosecuted for this crime within the meaning of the statute of limitations (Gen. Statutes, p. 545, sec. 1,) before the 13th day of October, 1881, when he was called upon to plead in the Superior Court to the information filed by the State’s Attorney at the January term of the court, 1879; and this although the defendant had been arrested for the same offence, and brought before a justice of the peace on the 8th of October, 1878, on a proper complaint by an informing officer of the town where the offence was alleged to have been committed, and although the justice had duly bound him over to appear at the same January term of the Superior Court to answer to the charge made in the complaint. The claim is that the proceedings before the justice were no part of the then pending prosecution of the defendant; that the information filed by the State’s Attorney was a new accusation, and that nothing was done under it until he was called upon to plead to it, more than three years after the crime was committed.

If the defendant had been tried in the Superior Court upon the complaint filed by the grandjuror, as he might have been, (2 Swift’s Digest, 370,) it probably would be conceded that the statute of limitations had not run against the crime. But it is an erroneous assumption that the information filed by the Attorney was the commencement of a new proceeding and an abandonment of the old one; it was merely a substitution of the information for the complaint in the progress of the prosecution commenced by the grandjuror. There was no abandonment of the original *438 proceedings. The bond taken by the justice required the accused to appear before the Superior Court and answer to the charge contained in the complaint. The information made the same charge in the same court in the same case. Hence the bond required the accused' to make answer to the information, and it would have been forfeited if he had failed to do so as much as it would have been if the case had proceeded upon the complaint. Such has been the uniform rule in such cases from time immemorial, and its correctness has never before been questioned. Judge Swxft, in the second volume of his Digest, p. 370, says:— “ So where a complaint has been made by a single grand-juror to a justice of the peace, and the person prosecuted has been bound over to the Superior or County Court, then, if the complaint should be defective, he [the State’s Attorney] may file a new information, but where it is good he may proceed to trial upon it.” Judge Dutton, in his Revision of Swift’s Digest, adds:—“ In such cases [that is, of binding over] the practice is for the Attorney to file an information.” We think, therefore, there was no merit in the defendant’s plea in bar, and for this reason the ruling of the court could have done him no harm.

Again, it is said the court erred in allowing the State to prove that the accused received and concealed the property in question, knowing that it had been stolen, inasmuch as the information contained but one count, and that for theft, and inasmuch as the Attorney had first offered evidence tending to show that the defendant was a principal in the original theft.

This question depends upon the construction that should be given to the statute upon which this information is based. The statute is as follows:—“ Every person who shall receive and conceal any stolen goods or articles, knowing them to be stolen, shall be proceeded against as a principal, although the person who committed the theft be not convicted thereof; and shall be prosecuted and tried before the same court, and punished in the same manner as if he had been the principal.” In the case of State v. *439 Weston, 9 Conn., 527 , the information contained but a single count, which charged both of the defendants with the crime of stealing bank bills to the amount of sixty-nine dollars. There was evidence on the trial that one of the defendants stole the property and afterwards gave a part of it to the other, who knew that it had been stolen. Thereupon the counsel for the defendants claimed that if the jury should find this to be true, the receiver could not be convicted upon the same information with the original thief. The court did not so charge, but charged the contrary. Both of the defendants were convicted, and this court held 'the conviction correct.

This case establishes the doctrine that a person who receives and conceals stolen goods, knowing them to have been stolen, is guilty, under the statute, of stealing the property with the principal thief. The statute is to the same effect. It provides that the receiver shall be “ prosecuted ” as if he were the principal, that he shall be “ tried before the same court ” as if he were the principal, and shall be “punished in the same manner” as if he were the principal. Surely no other reasonable construction can be given to the statute. By the statute of 5 Anne, ch. 31, and by that of 1 Geo. I., ch. 11, receivers of stolen goods, knowing them to be stolen, were made accessories to the original felony, and punished in the same manner as their principals. 4 Black. Comm., 38, 39, 132. The only difference between that statute and ours is, that ours makes receivers principals in the felony, and not accessories to it. But in both statutes the offence relates back to the original crime.

It follows, therefore, that the information is correct in charging the defendant with the commission of the original crime; and that the court committed no error in allowing evidence that the defendant received and concealed the stolen property, knowing that it had been stolen, in order to prove him guilty of the original crime, although evidence . had been offered of a different character. If the prosecutor offers evidence tending to show that the accused is guilty of crime in one capacity, he is not thereby precluded from *440 proving him guilty in another. He may show that the accused was the principal perpetrator, and after offering his evidence connecting him directly with the crime, he may prove him guilty as an aider and abettor, or, as in this case, that he was guilty as a receiver of the stolen goods. This was done in the case of State v. Weston , just referred to.

And it further follows that the court in .New Haven County, within whose jurisdiction the original crime was committed, had jurisdiction of the case, for the defendant was a principal in the crime. The case of the receiver follows that of the principal perpetrator, and wherever he may be brought to justice, there may the receiver also. -No doubt the court in Fairfield County had likewise jurisdiction of this case, inasmuch as the principal thief took the property into that county.

Again, it is claimed that the court erred in receiving evidence tending to show knowledge on the part of the defendant that the property in question had been stolen, by showing that he had previously received other stolen goods from the principal perpetrator in this case, knowing that they had been stolen. We see no error in this. We have nothing to do with the question of fact which the counsel for the defendant attempts to raise, whether the principal thief in this case was or was not concerned in the stealing and delivery of the stolen property to which the admitted evidence related. It is sufficient that the state claimed on the trial that he was concerned in both transactions, and that the question of fact was submitted to the jury. All that the court below had to determine was, whether guilty knowledge could properly be proved in the manner proposed; and we have no doubt that the ruling of the court was correct./' Wharton, in his work on Criminal Law, vol. .1, sec. 634, refers to the case of People v. Rando, 3 Parker’s Crim. R., 335, approvingly as follows:—“The prisoner was indicted for receiving stolen goods, knowing them to be stolen at the time; the prosecution offered evidence of several acts of like character, with the view of showing therefrom guilty knowledge on the part of the *441 defendant. It was held that the evidence was admissible.” So in vol. II, sec. 1890, he says,—“ To show guilty knowledge, other instances of receiving may be proved; even though they be the subject of other indictments antecedent to the receiving in question.” In Rex v. Davis, 6 Car. & P., 177, the defendants were charged in several indictments with receiving stolen goods; it was held that “any receiving that was before the one in the indictment which is being tried, may be given in evidence, although itself the subject of another indictment.”

. The cases in the state of New York, (Coleman v. The People, 55 N. York, 81, Copperman v. The People, 56 id., 591, and Coleman v. The People, 58 id., 555,) may seem on a casual examination to hold the doctrine that the receiving of stolen goods in the former instances must not only have been from the same party from whom the goods in question were received, but that the goods in question must have been stolen from the same person as the others and be similar in character to them; but a more careful examination of the cases will show that no such point was made. In the last two cases the goods were stolen from the same party from whom the goods in question were stolen, and were all similar in character, and so the court states the fact; but it is not held in either of them that this was essential to make the evidence admissible. In the first case cited the court remarks that “ it is not competent for the prosecution to show, for the purpose of proving the scienter, that the accused has received other property from other persons, knowing the same to have been stolen.” Of course the property must have been received from the same person from whom the goods in question were received in order to show guilty knowledge, but that all the property must be stolen from the same party, or must be similar in character, none of the eases decide. There is no reason for such a doctrine. If the accused knows, when he receives goods, that he receives them from a professional thief, who has made him a receiver of the proceeds of various thefts before, it adds no force'to the evidence, that the thefts were *442 all from the same party, or that the stolen goods were similar in character.

The remaining questions in the case need but brief notice.

The evidence offered by the defendant to support the character of one of his witnesses for truth and integrity, who was a resident of this state, and to impeach whose general reputation in this respect no attempt had been made by the prosecution, was clearly inadmissible.

The question asked of Collins on cross-examination by the State, was allowable. 1 Chitty Crim. Law, 621; 2 Stark. Ev., 116; 1 Greenl. Ev., § 466; Harris v. Tippett, 2 Campb., 638; Southard v. Rexford, 6 Cowen, 254. The witness declined to answer the question, and certainly the defendant has no cause to complain.

The pending informations against the witnesses Collins and Johnson, offered in evidence by the State to impeach their character, were ruled out by the court, and consequently could have done the defendant no harm.

We have no doubt that a horse is included within the meaning of the words “ goods or articles,” as used in the statute on which this information is based. Whatever property is the subject of larceny, admits of being received and concealed within the meaning of the statute. Webster defines goods to be “ personal or movable estate, as horses, cattle, utensils, &c.”

The charge of the court in regard to what constitutes “ concealing ” the property is unexceptionable. A horse may be concealed, within the meaning of the statute, by destroying the means of identifying him as well as in any other manner. The word “ conceal ” was not used in the .statute in a technical sense. It includes all acts done whieh render the discovery or identification of the property more difficult.

Tbe other questions growing out of the charge of the court have already been considered.

' A new trial is not advised.

In this opinion the other judges concurred.