Summary
In Thomas v. State, 205 Miss. 653, 39 So.2d 272 (1949), Thomas was indicted and convicted for receiving stolen fertilizer.
Summary of this case from Hentz v. StateOpinion
March 14, 1949.
1. Criminal law — larceny — receiving stolen property.
One who steals property cannot be convicted of receiving, concealing or aiding in concealing the stolen property; nor can one who has stolen property jointly with another be convicted of receiving stolen property.
2. Criminal procedure — indictment charging receipt of stolen property not sustained by proof of participation in the larceny itself.
When the proof shows that the accused was actually present and personally participated in the larceny itself he cannot be convicted of the offense of receiving stolen property, and such a conviction will be set aside, and the indictment dismissed.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Humphreys County; ARTHUR JORDAN, Special J.
North North, and Henry Barbour, for appellant.
It is an established principle that a person present and assisting in the theft of property cannot be convicted of the offense of receiving the goods thus stolen. The rule is succinctly stated in 53 C.J. 513.
To the same effect as to the general rule is the annotation found in 136 A.L.R. at page 1088: "In General — It is an elementary principle of law that the principal in a theft, or the persons who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen. The following cases support and recognize this rule: Mississippi — Frank v. State (1889), 67 Miss. 125, 6 So. 842; Manning v. State (1922), 129 Miss. 179, 91 So. 902. See Sanford v. State (1929), 155 Miss. 295, 124 So. 353 (where, in a prosecution for receiving stolen goods, of one having in his possession stolen goods, the commission of the larceny by the defendant was not negatived, the court held that the peremptory instruction requested by the defendant should have been given)." See Wharton's Criminal Law (12th Ed.), Vol. 2, at page 1551, Sec. 1234, and also 45 Am. Jur. at page 392, Sec. 10.
We submit that the case made by the State against appellant was that of larceny, and that this conviction for the reception of the stolen goods cannot be allowed to stand. The case falls squarely within the rule discussed above.
George H. Ethridge, Assistant Attorney General, for appellee.
Under Section 1995 of the Code, regardless of the common law, the appellant would be an accessory before the fact and all the circumstances warrant the conclusion of the jury that appellant knew the fertilizer was being stolen at the time he took it from the gin onto his truck. The carrying away from the gin was a continuation of the asportavit or carrying away of the property. The cases of Manning v. State, 129 Miss. 179, 91 So. 902; Sartorious v. State, 24 Miss. 602, and Franks v. State, 67 Miss. 125, 6 So. 842, established that one participating in a removal of stolen property before the removal or transportation was complete is guilty as a principal and not of the offense of receiving stolen property after the taking and carrying away was completed. As to who are principals in such a transaction see Sanderford v. State, 178 Miss. 705, 174 So. 814; Devine v. State, 132 Miss. 489, 96 So. 696; Hogsett v. State, 40 Miss. 522. It appears to me under the authorities cited and many other cases in our state that the contention of the appellant that the offense made out by the evidence was proof of larceny and not of receiving stolen goods with knowledge that it was stolen is correct.
It appears to me, therefore, that there was a variance between the proof and the indictment and that the indictment in this case being for an entirely separate offense from the offense proven in the evidence and that the judgment should be reversed and appellant discharged of the offense but that he should be held to await the action of the grand jury for indictment on a proper offense under Section 2439 of the Code of 1942. See Kline v. State, 44 Miss. 317; Kemp v. State, 121 Miss. 580, 83 So. 744. I have noted the authorities cited by appellant without citing all of them and without reference to textbooks and cases from other jurisdictions. I think that the authorities require the reversal of the case and the holding of the appellant to answer a charge in conformity to the evidence at the next meeting of the grand jury.
Jake Thomas was convicted in the Circuit Court of Humphreys County on a charge of receiving stolen property and sentenced to five years' imprisonment. From this judgment he appeals here.
There is little, if any, dispute as to the material facts. The defendant testified that one Roosevelt Parker approached him to borrow some money, and that he told him he needed his money for purchasing fertilizer. Whereupon Parker advised him he could get him all the fertilizer he wanted at Silver City. Defendant says he then asked if it was "straight", and Parker told him that it was. A price of $40 per ton was agreed on.
Roosevelt Parker testified that Jake Thomas came to his house in Silver City and asked him could he get hold of some fertilizer for him, and he told him "no". Jake Thomas then told him to let him know if he later found he could get some. On the following Saturday witness went to Belzoni and told the defendant that one Robert Van knew where they could get some fertilizer, and witness arranged for him to come down on the following Thursday night in his car to pick it up.
Robert Van testified that while on his way home he found some keys at the railroad crossing. He picked them up, and as he proceeded on home, he was overtaken by a rain just as he was passing the seed house at the gin. He stopped under the shed to get out of the rain and saw the lock on the seed house door. He tried his keys and found one fitted. The fertilizer was stored in this seed house.
From this point on there is no dispute in the evidence on any material matter. It is undisputed that Jake Thomas made three trips and on each occasion he drove his car within a car length of the door to the seed house, after midnight, and Robert Van unlocked the door. Roosevelt Parker and Robert Van entered the seed house and brought the fertilizer to the door, and then Jake Thomas assisted them in loading it in his car. The fertilizer was the property of Mr. B.S. Reed, of Silver City.
Section 1905, Code of 1942, reads as follows: "Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not."
In addition, this defendant was actually present, aiding, abetting, and participating in the theft of the fertilizer. The car was on the gin property near the gin seed-house door, and defendant admitted on the stand that he assisted in the asportation in removing the fertilizer from the seed-house door and loading it in his car.
The rule is succinctly stated in 53 C.J. 513, Sec. 28, as follows: (Hn 1) "It is elementary law that one who steals property cannot be convicted of receiving, concealing or aiding in concealing the property stolen. The statutes making the receiving of stolen goods a substantive offense are not intended to punish the thief by way of a double penalty but are directed against those who would make theft easy or profitable. Nor can one who has stolen property jointly with another, that is to say, who jointly with another takes part in the caption and asportation of the property, be convicted of receiving stolen property . . .".
This rule has been accepted and recognized by this Court in Manning v. State, 129 Miss. 179, 91 So. 902, wherein it was held that (Hn 2) where a defendant is charged with receiving stolen goods and the evidence shows that he is guilty of the larceny of the goods in question, he cannot be convicted of the offense with which he is charged. To the same effect are the holdings in Sartorious v. State, 24 Miss. 602 and Frank v. State, 67 Miss. 125, 6 So. 842.
From what has been said hereinabove, it follows that the judgment of the lower court adjudging the defendant guilty of the offense of receiving stolen property is reversed, and the indictment is dismissed. Let the cause be reversed, the indictment dismissed, and the prisoner held to await the action of a proper Grand Jury.
Reversed and remanded.