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converted, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver shall, on conviction, be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment."
By s. 60, for the punishment of receivers, where the stealing, &c., is punishable on summary conviction, it is enacted, "that where the stealing or taking of any property whatsoever is punishable on summary conviction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such property, knowing the same to be unlawfully come by, shall, upon conviction thereof before a justice of the peace, be liable, for every first, second, or subsequent offence of receiving, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such property is by that act made liable."
*To support an indictment upon the 7 and 8 Geo. 4, c. 29, s. [ *805 ] 54, the prosecutor must prove, 1, the stealing of the goods by the principal felon, if it be so stated in the indictment, or his conviction for that offence, if it be averred; 2, the receiving of the goods by the prisoner; 3, that the goods so received were those previously stolen; 4, the guilty knowledge of the prisoner.
Proof of the larceny by the principal.] It is not necessary to state, in the indictment, the name of the principal felon, and the usual practice in an indictment against a receiver for a substantive felony is, merely to state the goods to have been "before then feloniously stolen," &c., without stating by whom. See Arch. Pl. 257, 7th ed.
Where it was objected to a count charging the goods to have been stolen by "a certain evil disposed person," that it ought either to have stated the name of the principal, or else that he was unknown, Tindal, C. J., said, the offence created by the act of parliament is not the receiving the stolen goods from any particular person, but receiving them, knowing them to have been stolen. The question, therefore, is, whether the goods were stolen, and whether the prisoner received them, knowing them to have been stolen? Jervis's case, 6 C. and P. 156 (a). See also Wheeler's case, 7 C. and P. 170 (b), post, p. 811. Where the goods had been stolen by some person unknown, it was formerly the practice to insert an averment to that effect in the indictment, and such averment was held good. Thomas's case, 2 East, P. C. 781. But where the principal was known, the name was stated according to the truth. 2 East, P. C. 781. Where the goods were averred to have been stolen by persons unknown, a difficulty sometimes arose as to the proof, the averment being considered not to be proved, where it appeared that in fact the principals were known. Thus where, upon such an indictment, it was proposed to prove the case by the evidence of the principal himself, who had been a witness before the grand jury, Le Blanc, J., interposed, and directed an acquittal. He
(a) Eng. Com. L. Rep. xxv. 330. (b) Id. xxxii. 483.
said he considered the indictment wrong in stating that the property had been stolen by a person unknown; and asked how the person who was the principal felon could be alleged to be unknown to the jurors, when they had him before them, and his name was written on the back of the bill? Walker's case, 3 Campb. 264.
It is difficult to reconcile this decision with the resolution of the judges in the following case. The indictment stated that a certain person or persons, to the jurors unknown, stole the goods, and that the prisoner received the same knowing them to have been feloniously stolen. The grand jury also found a bill, charging one Henry Moreton with stealing the same goods, and the prisoner with receiving them. It was objected that the allegation, that the goods were stolen by a person unknown, was negatived by the other record, and that the prisoner was entitled to an acquittal. The prisoner being convicted, the point was reserved, and the [ *806 ] judges held *the conviction right, being of opinion that the finding by the grand jury of the bill, imputing the principal felony to Moreton, was no objection to the second indictment, although it stated the principal felony to have been committed by certain persons to the jurors unknown. Bush's case, Russ. and Ry. 372 (a).
It has been doubted whether, where the indictment alleges that the prisoner received the goods in question from a person named, it must be proved that the receipt was in fact from that person. See marginal note, Messingham's case, 1 Moody, C. C. 257 (b).
But where A. B. was indicted for stealing a gelding, and C. D. for receiving it, knowing it to have been "so feloniously stolen as aforesaid;" and A. B. was acquitted, the proof failing as to the horse having been stolen by him; Patteson, J., held that the other prisoner could not be convicted upon that indictment. Woolford's case, 1 Moo. and R. 384. . .
So where the indictment stated that the prisoner received the goods from the person who stole them, and that the person who stole them was a person to the jurors unknown, and it appeared that the person who stole the property handed it to J. S., who delivered it to the prisoner; Parke, J., held, that on this indictment it was necessary to prove that the prisoner received the property from the person who actually stole it, and would not allow it to go to the jury to say, whether the person from whom he was proved to have received it, was an innocent agent or not of the thief. Elsworthy's case, 1 Lewin, C. C. 117.
Where the indictment states a previous conviction of the principal, such conviction must be proved by the production of an examined copy of the record of the conviction, and it is no objection to such record, that it appears therein that the principal was asked if he was (not is) guilty; that it does not state that issue was joined, or how the jurors were returned, and that the only award against the principal is, that he be in mercy, &c. Baldwin's case, Russ. and Ry. 241 (c); 3 Campb. 265; 2 Leach, 928, (n.) But if the indictment state not the conviction but the guilt of the party, it seems doubtful how far the record of conviction would be evidence of that fact. Turner's case, 1 Moody, C. C. 347 (d), ante, p. 50. The opinion of Mr. Justice Foster, however, is in favor of the affirmative. Where the accessary, he says, is brought to trial after the conviction of his principal, it is not necessary to enter into a detail of the
(a) 1 Eng. C. C. 372. (b) 2 Id. 257. (c) 1 Id. 241. (d) 2 Id. 347.
evidence on which the conviction was founded. Nor does the indictment aver that the principal was in fact guilty. It is sufficient if it recites with proper certainty the record of the conviction. This is evidence against the accessary, to put him on his defence; for it is founded on a legal presumption that every thing in the former proceeding was rightly and properly transacted. Foster, 365.
Where the indictment stated that the principal felon had been convicted of the stealing, and in support of this averment, an examined copy of the record was put in, by which it appeared that the principal had pleaded guilty, it was objected that this was merely *equivalent to a con- [ *807 ] fession by the principal, and was not evidence against the receiver; but Bosanquet, J., ruled, that though the principal was convicted on his own confession, yet such a conviction was prima facie, but not conclusive evidence, against the accessary. Blick's case, 4 C. and P. 377 (a).
Where the principal felon has been convicted, it is sufficient in the indictment to state the conviction, without stating the judgment. Hyman's case, 2 Leach, 925; 2 East, P. C. 782; Baldwin's case, 3 Campb. 265.
Proof of the receiving—distinction between receiving and stealing.] It frequently happens that a doubt arises whether the acts done by the person amount to a receiving, or to a stealing, as in the following cases; from which it appears that if the prisoner took part in the transaction, while the act of larceny by others was continuing, he will be guilty as a principal in the larceny, and not as a receiver. Dyer and Disting were indicted for stealing a quantity of barilla, the property of Hawker. The goods, consigned to Hawker, were on board a ship at Plymouth. Hawker employed Dyer, who was the master of a large boat, to bring the barilla on shore, and Disting was employed as a laborer, in removing the barilla after it was landed in Hawker's warehouse. The jury found that while the barilla was in Dyer's boat, some of his servants, without his consent, removed part of the barilla, and concealed it in another part of the boat. They also found that Dyer afterwards assisted the other prisoner, and the persons on board who had separated this part from the rest, in removing it from the boat for .. the purpose of carrying it off. Graham, B., (after consulting Buller, J.,) was of opinion, that though, for some purposes, as with respect to those concerned in the actual taking, the offence would be complete, as an asportation in point of law, yet, with respect to Dyer, who joined in the scheme, before the barilla had been actually taken out of the boat where it was deposited, and who assisted in carrying it from thence, it was one continuing transaction, and could not be said to be completed, till the removal of the commodity from such place of deposit, and Dyer having assisted in the act of carrying it off, was, therefore, guilty as principal. Dyer's case, 2 East, P. C. Another case arose out of the same transaction. The rest of the barilla having been lodged in Hawker's warehouse, several persons employed by him as servants conspired to steal a portion of it, and accordingly removed part nearer to the door. Soon afterwards the persons who had so removed it, together with Abwell and O'Donnell, who had in the mean time agreed to purchase part, came and assisted the others (who took it out of the warehouse) in carrying it from thence. Being all indicted as
(a) Eng. Com. L. Rep. xix. 428.
principals in larceny, it was objected that two were only receivers, the larceny being complete before their participation in the transaction; but Graham, B., held, that it was a continuing transaction, as to those who joined in the plot before the goods were actually carried away from the premises; [ *808] *and all the defendants having concurred in, or been present at the act of removing the goods from the warehouse where they had been deposited, they were all principals; and the prisoners were convicted accordingly. Atwell's case, 2 East, P. C. 768.
In the following case, the removal of the goods was held to be so complete, that a person concerned in the further removal was held not to be a party to the original larceny. Hill and Smith, in the absence of the prisoner, broke open the prosecutor's warehouse, and took thence the goods in question, putting them in the street, about thirty yards from the warehouse door. They then fetched the prisoner, who was apprised of the robbery, and who assisted in carrying the property to a cart, which was in readiness. The learned judge who tried the case was of opinion, that this was a continuing larceny, and that the prisoner who was present, aiding and abetting in a continuation of the felony, was a principal in that portion of the felony, and liable to be found guilty; but on a case reserved, the judges were of opinion, that as the property was removed from the owner's premises before the prisoner was present, he could not be considered as the principal, and the conviction as such, was held wrong. King's case, Russ. and Ry. 332 (a). The same conclusion was come to in the following case. One Heaton having received the articles in question into his cart, left it standing in the street. In the meantime the prisoner M'Makin came up, and led away the cart. He then gave it to another man to take it to his (M'Makin's) house, about a quarter of a mile distant. Upon the cart arriving at the house, the prisoner Smith, who was at work in the cellar, having directed a companion to blow out the light, came up and assisted in removing the articles from the cart. For Smith it was argued, that the asportavit was complete before he interfered, and Dyer's case, ante, p. 807, was cited, and Lawrence, J., after conferring with Le Blanc, J., was of this opinion, and directed an acquittal. M'Makin's case, Russ. and Ry. 333, (n), (b). Upon the authority of King's case, the following decision proceeded. The prisoner was indicted for stealing two horses. It appeared that he, and one Whinroe went to steal the horses. Whinroe left the prisoner when they got within half a mile of the place where the horses were, stole the horses, and brought them to the place where the prisoner was waiting for him, and he and the prisoner rode away with them. Mr. Justice Bayley at first thought that the prisoner's joining in riding away with the horses might be considered a new larceny; but on adverting to King's case, (supra) he thought this opinion wrong, and on a case reserved, the judges were of opinion that the prisoner was an accessary only, and not a principal, because he was not present at the original taking. Kelly's case, Russ. and Ry. 421 (c).
The circumstances in the next case were held not to constitute a receiving. The prisoner was indicted for receiving goods stolen in a dwelling-house by one Debenham who lodged in the house, broke open a [*809] box there and stole the property. The prisoner *was seen walking backwards and forwards before the house, and occasionally looking up;
(a) 1 Eng. C. C. 332. (b) 1 Ibid. 333. (c) 1 Ibid. 421.
and he and Debenham were seen together at some distance, when he was apprehended, and part of the property found on him. The jury found that Debenham threw the things out of the window, and that the prisoner was in waiting to receive them. Mr. Justice Gaselee thought, that under this finding it was doubtful, whether the prisoner was guilty of receiving, and reserved the point for the opinion of the judges, who held that the prisoner was a principal, and that the conviction of him as receiver was wrong. Owen's case, 1 Moody, C. C. 96 (a).
Where the evidence leaves it doubtful in what manner the goods first came to the prisoner's possession, the safest mode is to frame the indictment as for larceny. Stolen property having been discovered concealed in an out-house, the prisoners were detected in the act of carrying it away from thence, and were indicted as receivers. Patteson, J., said, "there is no evidence of any other person having stolen the property. If there had been evidence that some one person had been seen near the house, from which the property was taken, or if there had been strong suspicions that some one person stole it, those circumstances would have been evidence that the prisoners received it, knowing it to have been stolen. If you are of opinion that some other person stole, and that the prisoners received it knowing that fact, they may be convicted of receiving. But I confess, it appears to me rather dangerous, on this evidence to convict them of receiving. It is evidence on which persons are constantly convicted of stealing." The prisoners were acquitted. Densley's case, 6 C. and P. 399 (b). The two prisoners were indicted for larceny. It appeared that the prisoner A. (being in the service of the prosecutor) was sent by him to deliver some fat to C. He did not deliver all the fat to C., having previously given part of it to the prisoner B. It being objected that B. ought to have been charged as receiver, Gurney, B., said it was a question for the jury, whether B. was present at the time of the separation. It was in the master's possession till the time of the separation. Butteris's case, 6 C. and P. 147 (c).
Proof of receiving, joint receipt.] Where two persons are indicted as joint receivers, it is not sufficient to show that one of them received the property in the absence of the other, and afterwards delivered it to him. This point having been reserved for the opinion of the judges, they unanimously held that upon a joint charge it was necessary to prove a joint receipt; and that as one of the persons was absent when the other received the property, it was a separate receipt by the latter. Messingham's case, 1 Moody, C. C. 257 (d).
Husband and wife were indicted jointly as receivers. The goods were found in their house. Graham, B., told the jury, that generally speaking, the law does not impute to the wife those offences, which she may be supposed to have committed by the coercion of *her husband, [*810] and particularly where his house is made the receptacle of stolen goods; but if the wife appears to have taken an active and independent part, and to have endeavored to conceal the stolen goods more effectually than her husband could have done, and by her own acts, she would be responsible as for her own uncontrolled offence. The learned judge resolved, that as the charge against the husband and wife was joint, and it had not been left to the jury to say, whether she received the goods in the absence of (a) 2 Eng. C. C. 96. (b) Eng. Com. L. Rep. xxv. 457. (c) Id. 324. (d) 2 Eng. C. C. 257.