State v. Pray

1. Pines — Payment — Payment under Protest — Eppect — Statutory Provisions. Criminal practice act, sec. 453 (Comp. Laws, 4418), provides that, if the judgment is a fine and imprisonment, defendant shall be committed to the custody of the proper officer, and by him detained until the judgment is complied with. Section 479 of the act (Comp. Laws, 4444) provides that no appeal from a judgment of conviction other than for a fine only shall stay execution, but the defendant shall remain in custody to abide the judgment on appeal, unless admitted to bail. Section 666 of the act (Comp. Laws, 4631) requires the clerk to pay the balance of fines remaining in his hands to the county treasurer. Section 667 of the act (Comp. Laws, 4632) requires the clerk to pay over fines received within thirty days, and makes failure to do so a misdemeanor. Comp. Laws, 1208, 4645, require the payment of such funds to the state treasurer, and under the law they become part of the state school fund, and under Comp. Laws, 1987, can be paid out only on the warrant of the state controller pursuant to law. Accused was convicted and fined, with the proviso that in the default of payment he should be imprisoned at the rate of one day for each two dollars thereof. An appeal was taken, and a stipulation between counsel for accused and the district attorney showed that the accused paid the fine under protest, that it was held by the clerk pending the outcome of the appeal, and that the district attorney was willing to permit accused to have his full rights on appeal, and the money returned if the appeal resulted in his favor. Held, that neither the clerk nor any one else had any power to make any disposition of the fine other than that provided by statute, and the arrangement made was void, and, since accused was at liberty without bail, the judgment for the fine could only be treated as paid. 2. Criminal Law —Appeal —Dismissal —Grounds —Payment op Fines. where an order appealed from is of such a nature that its execution has left nothing upon which a judgment of reversal can operate, the appeal will be dismissed unless such right was especially reserved; hence, where one convicted of a crime has paid his fine under protest, attempting to reserve his rights on appeal, but such reservation is void, an appeal from the judgment, will be dismissed, since the money could not be returned to him, and no effectual relief could be granted. 3. Same — Venue—Receiving Stolen Goods. The rule of the common law requiring that an indictment be found in the county where the crime was committed prevails in Nevada, and, while the crime of larceny is an exception to the rule, in the absence of statute the venue of the crime of receiving stolen goods is in the county where they are received, and not in the county where they are stolen, nor the one to which they are subsequently taken. 4. Receiving Stolen Goods — Elements of Offense — Statutoey Peovisions. Under crimes and punishments act, sec. 65 (Comp. Laws, 4719), providing that every person who, for his own gain or to prevent the owner from again possessing his property, shall buy or receive stolen goods, knowing the same so to have been obtained, shall upon conviction be imprisoned, etc., there are three material and essential elements of the offense, to wit: The person charged must receive or buy the property; he must know that the property was stolen, and there must be a purpose or intent to prevent the owner from again possessing the property, or to accomplish the receiver’s own gain. 5. Same — Time of Weongful Act — Intent. The wrongful intent, being a necessary ingredient of the crime, must exist at the time of the buying or receiving of the stolen goods. 6. Ceiminal Law — Venue—Statutoey Peovisions — Offense Paetially Committed-in Diffeeent Counties. Criminal practice act, sec. 85 (Comp. Laws, 4055), provides that when a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction shall be in either county. Stolen goods were purchased, paid for, and received by accused in E. County, and were thereafter shipped by him to C. County. Held, that C. County had no jurisdiction of the offense, since the offense of receiving stolen goods is consummated when the goods are received with the unlawful intent specified in the statute, and the subsequent transportation of the goods into another county to reap, the fruits of the crime is not an act essential to the consummation of the crime, and, if the effect of the transportation of the goods to C. County constituted the intent to deprive the owner of the property, the act of receiving was not accompanied by the wrongful intent necessary to constitute the crime. 7. Receiving Stolen Goods —Place of Offense — Yaeiance. Where-the evidence, in a prosecution in C. County for receiving stolen property, merely shows that the stolen property was purchased by accused in E. County, the indictment is not sustained by the proof, and the judgment should be reversed on appeal.

Appeal from the District. Court of the Second Judicial District of the State of Nevada, Churchill County; W. H. A. Pike, Judge. C. A. Pray and W. J. Langdon were convicted of receiving stolen goods, and appealed from the judgment and an order denying motion for a new trial. The facts sufficiently appear in the opinion. I. At common law all criminal prosecutions are local, and an indictment can. be found and prosecution had only in the county in which the crime has been committed. (12 Cyc. 229; 22 Ency. PI. & Pr. 821; 1 Bishop on Crim. Procedure, 65; Campbell v. People, 109 Ill. 565, 50 Am. Rep. 621.) The common law of England, in so far as it has not been changed by the Constitution and laws of the. United. States and of the State of Nevada, is the law of this state. (Comp. Laws, 3095.) The only apparent exception to the common-law rule of venue is in the ease of larceny where it is .held that the thief may be prosecuted, not only where the goods were first feloniously taken, but in any county through or into which the property has been carried. Strictly speaking, it is not a real exception, since the common law holds that a new larceny is committed in each jurisdiction into which the goods were carried by the thief. {Campbell v. People, 109 Ill. 565, 50 Am. Rep. 623; State v. Brown, 8 Nev. 208.) At common law the above rule was confined strictly to larceny, but in Nevada the rule has been enlarged by statute so as to give a like jurisdiction where goods have been taken by burglary, robbery, and embezzlement, but with these offenses, as with larceny, the rule only applies where the original offender is found with the goods in his possession. II. The offense of receiving stolen goods is committed where the goods are received, and not elsewhere. Carrying afterwards is not a new receiving. {Campbell v. People, 109 Ill.565; Ideette v. State, 75 G-a. 253; Thurman v. State, 40 S. W. 765.) III. To recapitulate, we submit that the common law respecting jurisdiction or venue in the crime of larceny has not been changed in Nevada, but that the statute is simply declaratory thereof {State v. Brown, 8 Nev. 208); that the common-law rule in larceny has simply been broadened by Comp. Laws, 4060, so as to include punishment of burglary, robbery, or embezzlement, as well as larceny, in the county where the perpetrator of such crime is found with the goods; that there is no statute in Nevada placing venue in two or more counties for the crime of buying or receiving stolen goods, and that the crime now under consideration was committed, if at all, in Goldfield, Esmeralda County, Nevada, more than two hundred miles from where in said indictment it was alleged to have been committed, and not only outside the County of Churchill, but far beyond the borders of the Second Judicial District. IV. Concealment, while it may tend to show guilty knowledge, is not an essential element of the crime of receiving stolen goods. (Thurman v. State, 40 S. W. 765; Holtz v. State, 30 Ohio St. 486.) The case of Thurman v. State has already been stated and quoted at length. In Holtz v. State we find the following statement: "Concealment would, if proven, tend to show guilty knowledge. It might be therefore proved, not to support the allegation, that he did conceal, but to establish scienter. The offense would be completely proved when it appeared from the testimony that he knowingly bought stolen goods.” The words "for his own gain” and "to prevent the owner from again possessing his property” found in our statute, go only to the intent at the time of the actual buying or receiving the stolen goods. They do not relate to any act of carrying or concealing after the crime has been committed, nor do they have the effect of making such carrying or concealing an element "constituting or requisite to the consummation of the offense.” (People v. Bibolsi, 89 Cal. 492; People v. Avila, 43 Cal. 199.) V. Section 496 of the California penal code reads as follows: "Every person who, for his own gain or to prevent the owner from again possessing his property, buys or receives any personal property, knowing the same to have been stolen, is punishable - by imprisonment in the state prison not exceeding five years” etc. Under this section, so similar to our Nevada statute, and very probably the section from which our section 4719 was directly quoted, we find the case of People v. Bibolsi, where defendant was convicted of feloniously receiving and buying stolen goods for his own gain and profit and to prevent the owner thereof from again possessing them. In rendering this opinion the Supreme Court of California uses the following language: "In cases like this the crime is made out if the accused received or bought the stolen goods, knowing them to be such, either for his own gain or to prevent the owner from again possessing his property; the guilty intent consisting either in receiving or buying them for his own gain or to prevent the owner from again possessing his property.” In People v. Avila the indictment charged the receiving of stolen goods as having been "for his own gain” leaving out the words " or to prevent the owner from again possessing his property.” The court in this case said: "It is unnecessary to allege that the defendant received stolen property both for his own gain and to prevent the owner from again possessing his property. The allegation of either intent is, under the statute, sufficient.” I. The question raised in appellants’ brief must be determined by the construction of the foregoing section of the criminal law of this state as applied to Comp. Laws, 4055, prescribing the criminal practice. The latter section declares "when a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties the jurisdiction shall be in either county.” (Comp. Laws, 4055.) The general rule at common law is that all offenses, except larceny, are punishable in the county where the offense is committed, and unless section 4055 changes the rule as applied to section 4079, defining the crime of receiving stolen property, we concede that appellants’ contention is correct. What, then, are the essential elements of the offense of receiving stolen goods as defined by our statutes? In answering this question we must look to the language defining the crime. Our contention is that there are three material and essential elements constituting this offense, the absence of any one of which elements will defeat a charge of this character -under the law: (a) -A person charged must receive or buy the stolen property; (i) he must know that the property was stolen; (e) the purpose or intent to prevent the owner from again possessing the property, or for the receiver’s own gain, must also exist. In other words, our contention is that a person who receives or buys stolen goods, knowing them to be stolen, upon proof of such facts- is not guilty of the offense defined in the statute. There must be additional proof of the intent or purpose, and, unless such additional intent or purpose is shown, the offense has not been completed and the' proof would be insufficient to support a conviction of -the offense charged. While there are but few authorities respecting the construction- of this act, yet, in some respects directly, and in others by analogy, our contention is maintained. An indictment that charged a person with having received stolen goods, knowing the same to have been so obtained, without further averring the intent to prevent the owner from possessing his property, or the intent for the receiver’s own gain, would under the authorities cited in appellants’ brief be fatally defective. (People v. Avila, 43 Cal. 196; People v. Uibolsi, 89 Cal. 492.) II. It is elementary that every material averment in an indictment must be proven beyond a reasonable doubt, and failure of proof upon any material averment must- result in an acquittal; therefore, the proof of the offense, under our statutes, must be beyond a reasonable doubt upon all three of the necessary averments of the indictment. It is incumbent upon the state to prove beyond a reasonable doubt that the appellants received the property; that when they received it they knew the same to have been stolen, and that it was their purpose or intent to deprive the G-oldfield-Mohawk Mining Company of its property. III. The effects of the proof- of the carrying of the property into Churchill County were requisite to the consummation of the offense committed by the defendants as to the element of depriving the owner of again possessing the same; the. act- of the defendants in carrying the property into Churchill County, and the effect of those acts constituted the element oí the intention to deprive the Goldfield-Mohawk Company of its property, and such being the case by the section referred to, the jurisdiction of the offense was either in Churchill County or in Esmeralda County. As we have before stated, the mere purchase of stolen property, knowing the same to be stolen, is not a completed offense, and a charge to that effect would not be a sufficient charge in an indictment. The additional purpose of preventing the owner of again possessing his property must be alleged and proven, and,'when the proof of that purpose and intent is shown by the acts of the parties in - carrying the stolen property into Churchill County to sell and dispose of, it is proof of that element of the offense, and proof of those acts is proof of acts in the consummation of the offense charged. It seems to us that the language could not import otherwise; that if it does not mean this it has no meaning. (109 111.572.) Of the case of Campbell v. People, cited in the brief, supra, it is sufficient to say that it sheds no light on the case at bar whatever. Under the Constitution of Illinois the local jurisdiction of all offenses was limited to the county where the offense was committed. The statute follows the constitutional provision and there was no such statute as our section 4055, and there was no limitation upon the jurisdiction except the common-law limitation as to larceny, where each aspor- ■ tation of the property was declared to be a new and separate. larceny. Outside of the offense of grand larceny every offense had to be prosecuted in the county where the venue was laid. (Lieette v. State, 75 Ga. 253.) IV. The Supreme Court of Tennessee in the case of Bice v. State, 3 Heisk. 226, held that the essence of the offense under their statute of receiving stolen property, knowing it to be stolen, is that the receipt of the property is accompanied by fraudulent intent to deprive the true owner thereof. In Burrell v. State, 5 Humph. 69, it was held that an indictment charging a person with receiving stolen property must aver that it was with the intent to deprive the true owner thereof. And if such is the law in Tennessee, then the-mere receiving stolen property, knowing it to have been stolen, is not an offense and does not become an offense until the intent to deprive the owner thereof has been established by facts, the effect thereof constituting the consummation of the offense. In other words, I may receive or purchase stolen property, knowing the same to have been stolen, and without any intent to deprive the owner of the possession of the property or without any purpose for my own gain, but if, after its receipt, with this knowledge, and while it is still in my possession, I remove the property to' Ohurehill County for the purpose of depriving the owner of it, or for the purpose of my own gain, then I have violated this substantive crime, and proof of the removal to Churchill County is proof of an act the effect of which constitutes the consummation of the offense, and the jurisdiction is either in Churchill County or Esmeralda County. It is well in this connection to note the definition of consummation. The Century Dictionary defines the word "consummation” as "accomplishment” "completion” "end” "the fulfillment or conclusion of anything.” Now, an act in the fulfillment of the intent to deprive the owner of his property, or an act in completion of the intent to deprive the owner of his property, is an act in the consummation of the offense of receiving stolen property as defined by our statute, and if such act is committed in the county other’ than where all the acts in the commission of the offense were committed, then the jurisdiction is in either of the counties. Y. The Superior Courts of Kansas and Tennessee both have recognized the elementary principle that the mere intent to commit a crime is not a crime, but that an intent coupled with a criminal act is a crime. Therefore, if any overt act, or the effect of any overt act, was committed by the defendants Pray and Langdon in proof of their intent to deprive the owner of its property or for their own gain in Churchill County, then the offense was committed partly in one county and partly in another, and under the section of our statute the jurisdiction was in either county. The payment of the fine by Pray was a waiver of any right of appeal, and his appeal should be dismissed. It is settled that the appellate court will not determine merely a speculative question, that it will not consider an appeal from a sentence which has been acquiesced in, or where- the accused has voluntarily-paid the fine imposed upon him, and that such acquiescence and payment is a waiver of his right of appeal. And-that such waiver will be implied from any act on the part of the defendant inconsistent with his intention-to take-an appeal. (State v. Gall, 14 Me. 421; Batesburg v. Mitchell, 37 S. E. 36; State v. Westfall, 37 -Iowa, 575; State v. Bur'the, 1 South. 652; Payne .v. State, 12 Tex. App. 160; Madsen v. Kenner, 4 Pae. 992.) Pray having paid the fine, his appeal should be dismissed. Both the defendants, having requested the court that if it would impose the penalty by fine, and not- by incarceration in the penitentiary, they would pay off and discharge the fine, by their acts waived their right of appeal. And it is to determine- á mere speculative proposition that this appeal is prosecuted. I. In all crimes, with the exception of a few statutory offenses where no intent whatever is necessary, the act and the intent must accompany each other — that is, they must be simultaneous. (1 Bishop’s NewCrim. Law, 204-208; 12 Cyc. 147; State v. Gardner, 5 Nev. 377.) Crime may-be committed under either of the following states of mind: (1) With no intent at all, as where a crime results from a negligent act, or in a few public torts, etc. (2) With a general or simple intent to do the act. (3) With a specific intent — that is, with a simple intent to do the act, either intensified by a feeling of malice, hatred, etc., or accompanied by ‘-another and particular intent to accomplish something by means of the act. The former may be illustrated by such crimes as murder, arson and- treason; and the latter (where the double intent is required), by burglary, larceny, assault with intent to kill, malicious destruction of property and receiving stolen goods. (12 Cyc. 147-152.) The words "for his own gain” and "to prevent the owner from again possessing his property” required by our .statute in defining the crime of receiving stolen goods, go only to the state of mind or intent necessary at.the time the goods are received — that is, they expressly set out the particular or "specific” intent which must accompany and be simultaneous with the simple intent to buy or receive the goods. It is elementary that the necessary intent and the act must coincide in point of time. (People v. Pibolsi, 89 Cal. 492; People v. Avila, 43 Cal. 196; People v. Tilley, 135 Cal. 61.) II. In the case at bar, if Mr. Pray had purchased and received the ore, knowing it to be stolen, but for any legitimate purpose — for example, the purpose of returning it to its rightful owner, or with any other intent not criminal— and had afterwards formed the purpose or intent to take the property for his own gain, the offense of receiving stolen goods would not have been committed. That is, no subsequent mental state or intent is sufficient. The specific intent required by the statute must accompany and be simultaneous with the act. III. Comp. Laws, 4055, does not, as is claimed by the respondent, abrogate the common-law rule concerning locus of crime, but its purpose is to, and it does, prevent the application of the very early rule in criminal law concerning juries. In early times juries were viewers of the fact, and it was necessary that they be from the county where the entire act was committed, otherwise no trial was possible. Thus in murder cases where the blow was struck or the injury inflicted in one county, and death occurred in another, it was necessary, and was the custom, to take the body to the county where the blow was originally struck in order to secure trial. IV. The motion to dismiss this appeal should be denied, for the reason that a criminal appeal, regularly taken and within the time allowed by law, cannot be attacked by matter outside the record; and for the further reason that inquiry on a motion to dismiss an appeal is limited to ascertaining, first, whether an appeal lies in a given case, and, second, whether it has been regularly taken and perfected. (2 Eney. PL & Pr. 347; Sines v. Cochran, 35 Neb. 828; Dinet v. People, 73 Ill. 183.) .The question whether an appeal lies and is regularly taken must be decided upon the record, and can be determined by the facts appearing only from the record, without the aid of extrinsic circumstances. (2 Ency. PI. & Pr. 347; O’Brien v. Smith, 37 N. Y. St. Rep. 43.) And where opposing affidavits raise conflicting questions of fact, the motion to dismiss will be denied. (2 Ency. PI. & Pr. 347; Hill v. Hermans, 59 N. Y. 396; Lewis v. Tilton, 62 Iowa, 100; Hew Orleans Nat. Bh. Asso. v. New 0. Mut. Ins. A., 100 U. S. 43.) The claim of the state that Pray and Langdon waived all error at the trial, and thus abandoned their rights to an appeal by making the statements set forth in the affidavits on file herein, is met and answered by the rule of law that jurisdiction on the subject-matter — that is, the right to try the case — can never be waived. (12 Cyc. 228, and note 43 on p. 229; People v. Granice, 50 Cal. 447; People v. JDu Bell, 1 Idaho, 44; Foley v. People, 1 Ill. 57; State v. Bollet, 6 Iowa, 535; Rice v. State, 3 Kan. 141; Slum v. People, 3 Hun, 272; Mills v. Com., 13 Pa. St. 627.) V. Judgment was not satisfied by appellant Pray. The stipulations, certificate of clerk, and affidavits on file herein, as well as the last page of appellant’s brief, show plainly that the money was simply deposited with the clerk of the Second Judicial District Court, in and for the County of Churchill, by appellant Pray, in order that he might have his liberty to secure counsel and to perfect his appeal. The said deposit was given and accepted more in the nature of bail money than as a fine. The above documents show that there was an agreement at the time that the money should be held by the said clerk pending this appeal and returned in case judgment should be reversed. It may be true that receiving the money under such circumstances and agreement was irregular, and even that Mr. Pray should not have been given his liberty, but that surely cannot be held to be the wrongful act or the fault of appellant Pray.