State v. Smith'

Lovelace, Judge,

delivered the opinion of the court.

Several errors are complained of by the defendant, but they may all be properly discussed under four heads: 1. The indictment charges the defendant with receiving stolen property, knowing it to be stolen, without naming the- thief; 2. The indictment charges the defendant, jointly with Charles Noyes and Friend Noyes, with receiving the property, when the evidence tends to prove that the defendant alone received it; 3. It is complained that the court admitted improper evidence on the part of the State, and excluded proper evidence on the part of the accused; and 4. That the court misdirected the jury as to the law in the case.

I. As to the first point, that the indictment fails to state the name of the thief or principal felon, the elementary books seem to settle the question and place it beyond argument. The gravamen of the offence is receiving stolen goods, knowing them to be stolen. It is a substantive felony. It *64 is a crime within itself; and the name of the person who stole the goods is immaterial. (Arch. Crim. Pl. 256; Roscoe, Crim. Ev. 804; Stark. Crim. Pl. 186; Whar. Crim. Law, 679-80.) The adjudged cases are to the same effect. (Rex v. Jervis, 6. Car. & P. 156; Rex v. Wheeler, 7 Car. & P. 170: Swaggerty v. The State, 9 Yerg. 838 ; State v. Copperburg, 2 Strob. 273 .) It is true these decisions are made under statutes, but so far as this question is concerned the statutes under which these decisions are made are exactly similar to our own.

II. It is insisted on by defendant’s counsel that inasmuch as the indictment charges the defendant with receiving the stolen goods jointly with Charles Noyes and Friend Noyes, and the evidence showed only a separate act of receiving by the defendant, he ought not to be convicted. That the probata and allegata ought to correspond, and to support an allegation of joint receiving there must be proof of joint receiving, and proof of a separate receiving will not be sufficient; and in support of this several cases have been cited, the leading one of which is Rex v. Messingham, 2 Brit. Cro. Cas. 257. Two persons, Mary Messingham and John Messingham, were upon a joint indictment charged with receiving 50 pounds weight of pork, of the value of 20s., of the goods and chattels of John Fisher, then lately before feloniously stolen, taken and carried away by some evil disposed person to the jurors unknown, well knowing the goods and chattels aforesaid to have been so as aforesaid feloniously stolen, &o. It was proved by satisfactory evidence that the meat was the property of John Fisher; that it had been stolen from him by some person unknown, and that both the prisoners knew it to have been stolen. The meat was found in the pantry of a cottage belonging to Mary Messingham, in which John Messingham, her son, and his children lived with her. Mary Messingham had the key of the pantry at the time the meat was found. •The statements of the prisoners were given in evidence, which showed that a man gave a bag to John and told him to take it home and leave what was in it until he called for *65 it, and return the bag to him again. John took the bag indoors and opened it and took out several pieces of hog meat and laid them on the stool in the pantry, and then returned the bag to the man again. When his mother returned home that evening he related the circumstance to her. Mary Messingham said in her statement that the meat was her son’s meat; that he brought it in-doors on Saturday and she salted it. Both prisoners were convicted. It was objected at the trial that Mary Messingham could not be legally convicted jointly with John Messingham upon this indictment; first, because the offence of John Messingham was complete before Mary Messingham took any part in the transaction; and, secondly, because she did not receive the meat of an unknown thief, as alleged in the indictment, but of her son John. The question for the consideration of the judges was, whether Mary Messingham was properly convicted, and the judges were unanimously of the opinion that on the point charged it was necessary to prove a joint receipt, and as the mother was absent when the son received, it was a separate receipt by him.

It will be observed that no question was made as to the propi’iety of convicting John Messingham under the indictment on proof of the separate receipt by him. And this point is still further explained in Regina v. Davey & Gray, 6 Brit. Cro. Cas. 89- The indictment in this case charged the defendants with jointly receiving twelve turkeys, knowing them to have been stolen. The evidence showed that the turkeys were stolen by a man named Hadden ; and Davey stated that he was called up at two o’clock in the night on which the turkeys were stolen by Hadden, who brought the turkeys to him in a sack; that he took them to Salisbury and sold them for Hadden. But the evidence showed that he sold only two and left the other ten with the other defendant, Elizabeth Gray, who resided at Salisbury, and who was proven to have disposed of the tixrkeys the same day. The jury returned a verdict of guilty against both prison *66 ers for receiving. The verdict was objected to, inasmuch as the indictment charged a joint receiving and the evidence showed separate acts of receiving by each defendant, and the jury were sent back and returned a verdict in this form: “We find that William Davey received on the road between Brook and Salisbury, and Elizabeth Gray at Salisbury.” The prisoners were not together. The question before the court was, whether upon this verdict the judgment ought to be reversed in favor of both or either of the prisoners. The court were of opinion that the first receiver, Davey, was properly convicted. And as Rex v. Messingham shows that several persons cannot be convicted of distinct felonies which are charged in an indictment as a joint felony, the evidence ought to have been confined to the case of the first receiver, and a verdict of acquittal taken in favor of Gray.

The rule to be deduced from these cases seems to be that when several are charged with jointly receiving stolen goods, to convict all or any two or more of them a joint receipt must be proven.

But in the case of Rex v. Horthall, Neal, Mole, and Horseman, Car. & P. 475, the first count of the indietment charged Horthall and Neal with a burglary in the house of Richard Gould, and stealing 200 pounds of bacon and other articles, and the same count went on to charge Mole with receiving-75 pounds, and Horseman with receiving a like quantity. There was also a count charging Mole and Horseman with the substantive felony of jointly receiving the bacon, and two other counts charging Mole and Horseman separately with a separate substantive felony, in each separately receiving a part of the stolen bacon. The burglary of Horthall and Neal was proven; but the evidence of receiving showed that Mole and Horseman had received portions of the stolen bacon on different occasions and quite unconnectedly with each other. The counsel for Mole and Horseman submitted that the count which charged a joint receiving was not proven, and that as distinct felonies had been committed by *67 the prisoners, Mole and Horseman, they ought to have been tried separately. The prisoners were all convicted, and the court refused to disturb the verdict.

It seems, then, that from all the authorities on the subject, it may be safely stated that in this case if the money was stolen, and the defendant Smith received it knowing it to have been stolen, he may be convicted although he is charged with jointly receiving it with others when the evidence shows that it was a separate act of receiving on his part.

But it is insisted that Charles Noyes first received it from Hard, the thief, and then delivered to this defendant, and that the receipt by Noyce satisfied the charge in the indictment and the defendant ought to have been acquitted according to the doctrine of Rex v. Messingham. But the facts proven do not warrant this conclusion, nor would they justify an instruction to this effect. The evidence of Hard shows that he and Charles Noyes jointly committed the theft, and not Hard alone. It is said that a party engaged in the transaction is a principal thief, not a receiver, (Roscoe Crim. E. 807,) and Charles Noyes received the money, not as the fruits of Hard’s embezzlement, but as the fruits of his own burglary and larceny. He was equally guilty with Hard in the whole transaction; indeed, he seems to have laid the plan by which the burglary was accomplished. He was one of the original offenders, and for all purposes must be regarded as holding the money as the fruits of his own theft. Then, if the principle is correct, (and I think it is settled beyond dispute,) but one receiving was proven by the evidence, and that was the receiving by the defendant Smith from Noyes, and according to the doctrine laid down in the cases cited he might properly be convicted for that receipt.

III. It is complained that the court below improperly admitted the witness Hard to relate conversations between himself and Charles Noyes prior to the theft, in relation to how the express company might be robbed, and in forming their plans to accomplish the felony; and also a conversation which took place between them the morning after the crime had been committed.

*68 To convict the defendant Smith under the indictment, it was necessary for the State to prove two things : first, that the money alleged to have been received by Smith was stolen; and, second, that Smith received it knowing it to have been stolen. (Whart. Crim. L. 676.) The act of stealing the property had to be proven, not by anything the defendant Smith had said or done, for so far as the indictment and evidence shows he had nothing to do with the stealing nor any knowledge of it until after it was accomplished. But this fact had to be proven by what was done and said by other parties with whom Smith had nothing to do at the time. The act of stealing, especially when accomplished by more than one person, has several parts. There must be plans laid and arrangements made, and there must be acts done in accordance with these plans and arrangements, and all these parts taken together constitute one act. Then, in proving an act, may you prove all its parts, or are you confined to the proof of its consummation ? It is generally sufficient to prove the final consummation, and the law will then presume all the concomitant parts that go to make up the act. Thus, in murder, if the killing be proved, the law will presume it was done in malice ; but this presumption would not cut the prosecution off from proving that it was done in malice. Again, if a person is proved to have taken the property of another from his possession without his (the owner’s) knowledge or consent, the law will presume that it was taken feloniously— that the'taker took it with the intention of converting it to his own use; but the prosecutor will not be prevented from proving this intention by evidence. And so of any of the other concomitants of crime. It may be unnecessary that the prosecution should prove them, but it could hardly be urged as an objection that he does prove them. So in the case at bar. Charles Noyes and the witness Hard commit a felony in the express office of the United States Express Company. Can it do the defendant any harm to prove when and where and how they agreed upon the plan by which this should be accomplished ? Was not the plan and arrangements by which the money was taken as much a part *69 of the félony as the taking of the money itself ? The felony, the stealing of the money mentioned in the indictment, was a substantive fact that the prosecution must prove; and upon what principle is he to be debarred from proving one part of that substantive fact rather than another ? But it is urged that the conversations between Hard and Noyce are, so far as this defendant is concerned, irrelevant, and ought not to be admitted. They certainly, .ought not to be admitted for the purpose of connecting the defendant Smith with the stealing. And if Smith’s name had been mentioned, as much at least of the conversation as referred to him ought to have been excluded. But these conversations were competent to prove the stealing — to show how it was planned and how it was accomplished ; and in this sense they were not hearsay but a part of the res gestee. If these conversations are to be excluded as hearsay because Smith was not present nor proven to have had any knowledge of them, why may not, on the same principle, the act of stealing be excluded as res inter alios acta ? Smith was no party to that either, and that would tend just as much to prejudice the minds of the jury against him as the details by which it was accomplished. Both the plan of the theft and its consummation form one transaction, and might be properly admitted. (Roscoe Cr. Ev. 20; 1 Phil. Ev., 191-4; Maryland v. Ridgly, 2 Har. & McH. 120.)

On the cross-examination of Mrs. Yan Court, a witness called on the part of the State, the defendant offered to prove that quinine was brought to her house about the time of the robbery of the United States Express Company, to be sent away secretly. The prisoner boarded at her house. This evidence was ruled out. The State had before proven that the defendant said that about the time of the robbery Charles Noyes had come to him and asked him to send some quinine to New York for him, Noyes ; that Noyes said he had sent it tó Memphis for the purpose of getting it through the Federal lines, and had failed, and the detectives were now on the lookout for the quinine, it being contraband of war, and that he had agreed to send the quinine for Noyes, and when *70 Noyes brought the bundle to his room and put it in the trunk he supposed it was the quinine. This evidence of Mrs. Yan Court was offered to support the prisoner’s statement. There was no error in excluding this evidence. The defendant was entitled to every reasonable hypothesis of the innocence consistent with the evidence, and if it was probable that this state of facts could have existed, the jury were bound to acquit under the instructions of the court. The court instructed them that “ in order to convict a defendant upon the evidence of circumstances alone, it is necessary that the circumstances proven shall have relation to, and be consistent with, each other; that they all concur to show that he is guilty of the offence charged against him, and that they all be inconsistent with any other rational conclusion. The inference against a defendant to be drawn from the circumstances proven must be so reasonably and morally certain as to exclude every presumption of his innocence. Under the law then, as thus laid down, if the defendant could even suppose a reasonable theory of his innocence, consistent with the facts proven, the jury were bound to acquit. The defendant was not required to prove his innocence; but if he could even suppose a reasonable theory consistent with the facts proven, the jury were bound to accept it and acquit. The court did, however, permit another witness, McCracken, to prove all about the quinine. So the defendant got the benefit, if there was any benefit in it, of all the evidence that was rejected.

IY. The last complaint is that the jury were misdirected as to the law. The instructions will not be set out in full ■here or very lengthily noticed, for the reason that the principles involved in them have already been discussed in a former part of this opinion. Instructions numbered 1,2, and 10, in the series of instructions, and refused by the court, are based upon the idea that there must be a joint receiving by the defendant Smith, and Charles Noyes, and Friend Noyes, as charged in the indictment, otherwise the defendant ought to be acquitted. These instructions were properly refused for reasons given in a former part of this opinion.

The third instruction refused is based upon the idea that *71 the defendant, before he could be convicted, must be proven to have received the goods from Charles D. Hard, who is alleged in some of the counts of the indictment to be the person who embezzled the money. This was a fact that it was neither necessary to allege or prove, and the instruction was properly refused. (Rex v. Jervis, C. Car. & P. 166.)

The' fourth instruction laid down no rule of law that would aid the jury in coming to a conclusion upon the facts.

The rule intended to be reached by the fifth, sixth, seventh, eighth, and ninth instructions was properly laid down by the court in the second instruction given on its own motion, and it was unnecessary to repeat it.

The eleventh instruction refused was based upon the idea that the principal felon must be named, and was properly refused for the reasons given in a former part of this opinion.

We find no error in the record, and the judgment is affirmed.

The other judges concur.