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her husband, the conviction of the wife could not be supported, though she had been more active than her husband. Archer's case, 1 Moody, C. C. 143 (a).
As the extent of the wife's liability in case of a joint receipt of stolen goods by her and her husband, does not appear to be well settled, it may not be useless to advert to the rule of the Scotch law on this subject. According to that law, the wife may be tried on the same libel with her husband for reset (receiving) in which they are both implicated, but she cannot be charged with resetting the goods which he has stolen, and brought to their common house, unless it appear that she was not merely concealing the evidence of his guilt, but commencing a new course of guilt for herself, in which she takes a principal share as by selling the stolen articles, and carrying on long the infamous traffic. If she has done either of these things, her privilege ceases, and in many such cases the wife has been convicted of receiving goods stolen by the husband. This being matter of evidence, however, must be pleaded to the jury, and cannot be stated as an objection to the relevancy of a charge of reset against the wife. Alison's Princ. Cr. Law of Scotl. 338.
An indictment in one count charged A. and B. with a burglary, and with stealing, and C. with receiving part of the stolen property, and D. with receiving other part of the stolen property; another count charged C. and D. with the substantive felony of jointly receiving the whole of the stolen property, and there were two other counts charging C. and D. separately with the substantive felony of each receiving part of the stolen property. It was proved that A. and B. had committed the burglary, and stolen the property, but the evidence as to the receiving, showed that C. and D. had received the stolen property on different occasions, and quite unconnectedly with each other. It was objected that the count charging a joint receiving was not proved (see Messingham's case, ante, p. 809), and that as distinct felonies had been committed by C. and D., they ought to have been tried separately. Per Littledale, J., "There is certainly some inconsistency in this indictment; but the practice in cases of receivers is to plead in this manner." The prisoners were all convicted. Hartall's case, 7 C. and P. 475 (b).
An indictment in the first count charged W. and R. C. with killing a sheep," with intent to steal one of the hind legs of the said sheep;" and in another count charged J. C. with receiving nine pounds' weight of mut[*811] ton" of a certain evil-disposed person," he then knowing that the mutton had been stolen. Coleridge, J., said, "this count is for receiving stolen goods, and it is joined not with another count against other persons for stealing any thing, but with a count for killing with intent to steal, which appears to me an offence quite distinct in its nature from that imputed to the prisoner (J. C.) I shall not stop the case, but I will take care that the prisoner has any advantage that can arise from the objection, if, upon consideration, I should think it well founded. The prisoners were all convicted." Wheeler's case, 7 C. and P. 170 (c).
Proof of the particular goods received.] The proof of the goods received must correspond with the allegation in the indictment, and substantially with the allegation of the goods stolen by the principal felon. But it is sufficient if the thing received be the same in fact, as that which
(a) 2 Eng. C. C. 143. (b) Eng. Com. L. Rep. xxxii. 589. (c) Id. xxxii. 483.
was stolen, though passing under a new denomination, as where the principal was charged with stealing a live sheep, and the accessary with receiving twenty pounds of mutton, part of the goods stolen. Cowell's case, 2 East, P. C. 617. But where the principal felon was charged with stealing six promissory notes of £100 each, and the other prisoner with receiving "the said promissory notes," knowing them to have been stolen, and it appeared that he had only received the proceeds of some of the notes, it was ruled, that the prisoner charged with the receiving must be acquitted. Walkley's case, 4 C. and P. 132 (a).
Upon an indictment for receiving a lamb, it appeared in evidence that at the time of the receiving, the lamb was dead, but on a case reserved, the judges held that it was immaterial as to the prisoner's offence, whether the lamb was alive or dead, the offence and the punishment for it being in both cases the same. Puckering's case, 1 Moody, C. C. 242 (b). In another report of this case, the judges are stated to have said, that the word sheep (lamb) did not necessarily import, that the animal was received alive, though it would have been more correct to state, that the prisoner received the dead body or carcase. 1 Lewin, C. C. 302.
Proof of guilty knowledge.] Evidence must be given of the prisoner's guilty knowledge, that he received the goods in question, knowing them to have been stolen. In general this evidence is to be collected from all the various circumstances of the case. The usual evidence is, that the goods were bought at an undervalue by the receiver. Proof that he concealed the goods, is presumptive evidence to the same effect. So evidence may be given that the prisoner pledged or otherwise disposed of other articles of stolen property besides those in the indictment, in order to show the guilty knowledge. Dunn's case, 1 Moody, C. C. 150 (c). And where the receiving of another article has been made the subject of another indictment, it is still, as it seems, in strictness, admissible to prove the guilty knowledge. Davis' case, 6 C. and P. 177 (d); see ante, p. 85.
The following enumeration of the circumstances from which a *presumption of the prisoner's guilty knowledge may be gathered, [*812] well illustrates the subject. "Owing to the jealousy and caution so necessary in this sort of traffic, it often happens that no express disclosure is made, and yet the illegal acquisition of the articles in question is as well understood, as if the receiver had actually witnessed the depredation. In this, as in other cases, therefore, it is sufficient if circumstances are proved, which to persons of ordinary understanding, and situated as the prisoner was, must have led to the conclusion that they were illegally acquired. Thus, if it be proved that the prisoner received watches, jewellry, large quantities of money, bundles of clothes of various kinds, or moveables of any sort, to a considerable value, from boys or other persons destitute of property, and without any lawful means of acquiring them; and especially, if it be proved that they were brought at untimely hours, and under circumstances of evident concealment, it is impossible to arrive at any other conclusion, but that they were received in the full understanding of the guilty mode of their acquisition. This will be still fur
(a) Eng. Com. L. Rep. xix. 309.
(b) 2 Eng. C. C. 242. (c) 2 Ibid. 150. (d) Eng. Com. L. Rep. xxv. 341.
ther confirmed, if it appear that they were purchased at considerably less than their real value, concealed in places not usually employed for keeping such articles, as under beds, in coal cellars, or up chimnies; if their marks be effaced, or false or inconsistent stories told as to the mode of their acquisition. And it is a still further ingredient towards inferring guilty knowledge, if they have been received from a notorious thief, or one from whom stolen goods have on previous occasions, been received." Alison's Princ. Cr. Law of Scotl. 330.
Where it was averred that the prisoner, "Francis Morris the goods and chattels, &c. feloniously did receive and have; he the said Thomas Morris then and there well knowing the said goods and chattels to have been feloniously stolen," &c., it was moved in arrest of judgment, that the indictment was bad, for that the fact of receiving, and the knowledge of the previous felony, must reside in the same person, whereas this indictment charged them in two different persons; but the judges held that the indictment would be good without the words "the said Thomas Morris," which might be struck out as surplusage. Morris' case, 1 Leach, 109.
The intention of the party in receiving the goods is not material, provided he knew them to be stolen. Where it was objected that there was no evidence of a conversion by the receiver, Gurney, B., said, if the receiver takes without any profit or advantage, or whether it be for the purpose of profit or not, or merely to assist the thief, it is precisely the same. Davis' case, 6 C. and P. 178 (a). If a receiver of stolen goods receive them for the mere purpose of concealment, without deriving any profit at all, he is just as much a receiver as if he had purchased them. Per Taunton, J., Richardson's case, 6 C. and P. 335 (b).
The rule by the law of Scotland is the same. If the prisoner once re[*813] ceive the goods into his keeping, it is immaterial upon what *footing this is done, whether by purchase, pledge, barter; or as a mere depository for the thief. Nay, though he buy them for full value, the crime is the same, because he knowingly detains them from the true owner; but the fact of a fair price having been paid is an important circumstance to outweigh the presumption of the guilty knowledge (1). Alison's Princ. Crim. Law of Scotl. 329; Hume, 113; Burnett, 155, 156.
Proof where the prisoner is charged as principal and receiver in different counts.] A person may be legally charged in different counts of the same indictment both as the principal felon and as the receiver of the same goods. Galloway's case, 1 Moody, C. C. 234 (c). But the judges, on a case reserved, were equally divided in opinion whether the prosecutor should in such case be put to his election. They all agreed, however, that directions should be given to the respective clerks of assize not to put both charges in the same indictment. Id. The latter point again arose in a subsequent case, and after discussion, a great majority of the judges were of opinion that the rule laid down in Galloway's case, (supra) should be adhered to. Madden's case, 2 Moody, C. C. 277 (d).
(1) Where a person suffered a trunk containing stolen goods to be put on board a vessel in which he had taken his passage, as part of his baggage, it was held, that this was such a receipt of the goods, as purchaser or bailee, as justified a conviction for receiving stolen goods. State v. Scovel, 1 Const. 274.
(a) Eng. Com. L. Rep. xxv. 342. (b) Id. 427. (c) 2 Eng. C. C 234. (d) 2 Ibid. 277.
. Where the prisoner was indicted for stealing, and the second count charged him with a substantive felony in receiving, Vaughan, B., ruled that the prosecutor must elect upon which of the counts he would proceed. Flower's case, 3 C. and P. 413 (a); sec Austin's case, ante, p. 216; Hartall's case, and Wheeler's case, ante, p. 810.
Proof by the prisoner of innocence of principal felon.] The party charged as receiver may controvert the guilt of the principal felon, even after his conviction, and though that conviction is stated in the indictment. For, as against him, the conviction is only presumptive evidence of the principal's guilt, under the rule that it is to be presumed that in the former proceeding every thing was rightly and properly transacted. It being res inter alios acta, it cannot be conclusive as to him. Foster, 365. If, therefore, it should appear, on the trial of the receiver, that the offence of which the principal was convicted did not amount to felony, (if so charged), or to that species of felony with which he is charged, the receiver ought to be acquitted. Id. Thus where the principal had been convicted, and on the trial of the receiver the conviction was proved, but it appeared on the cross-examination of the prosecutor, that, in fact the party convicted had only been guilty of a breach of trust, the prisoner, on the authority of Foster was acquitted. Smith's case, 1 Leach, 288; Prosser's case, Id. 290 (n).
Witnesses-competency of principal felon.] The principal felon, though not convicted or pardoned, is a competent witness for the crown to prove the whole case against the receiver. Haslam's case, 1 Leach, 418; Price's case, Patram's case, Id. 419, (n); 2 East, P. C. 732. But the confession of the principal felon is not, as it *has been al- [ *814 ] ready stated, evidence against the receiver. Turner's case, 1 Moody, C. C. 347 (b), ante, p. 50.
Venue.] By the 7 & 8 Geo. 4, c. 29, s. 76, (after providing that nothing contained in the act shall extend to Scotland or Ireland, except as follows,) it is enacted, "that if any person in any one part of the United Kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever, which shall have been stolen, or otherwise feloniously taken in any other part of the United Kingdom, such person knowing the said property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence, in that part of the United Kingdom, where he shall so receive or have the said property, in the same manner as if it had been originally stolen or taken in that part (1)."
And by sec. 56, "if any person shall receive any chattel, money, valu- · able security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, or converted, every such person, whether charged as an accessary after the fact to the felony, or with a substantive felony, or with a misdemeanor only, may be dealt with, indicted, tried, and punished in any county or place in which he (1) An indictment for receiving stolen goods lies against one, who receives the goods in one state, though stolen in another. Commonwealth v. Andrews, 2 Mass. 14. But see ante, p. 590, n.
(a) Eng. Com. L. Rep. xiv. 374. (b) 2 Eng. C. C. 347.
shall have, or shall have had, any such property in his possession; or in any county or place in which the party guilty of the principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished, in the county or place where he actually received such property."
Offence under various statutes
Proof of the eustody of the party rescued 815 Aiding a prisoner to escape
Nature of the offence.] The offence of rescue nearly resembles that of prison breach, which has already been treated of, ante, p. 794.
Where the party rescued is imprisoned on a charge of felony, the rescuing is felony also. 1 Hale, P. C. 606. Where the offence of the former is a misdemeanor, that of the latter will be a misdemeanor also. Hawk. P. C. b. 2, c. 21, s. 6.
If the party rescued was imprisoned for felony, and was rescued before indictment, the indictment for the rescue must surmise a felony done, as well as an imprisonment for felony, or on suspicion of felony, but if the party was indicted and taken upon a capias and then rescued, there needs only a recital that he was indicted prout, &c. and taken and rescued. 1 Hale, P. C. 607.
Though the party rescuing may be indicted before the principal be convicted and attainted, yet he shall not be arraigned or tried, before the principal is attainted. Id. In such case, however, he may, as it seems, be indicted and tried for a misdemeanor, though not for a felony. 1 Hale, P. C. 599.
Proof of the custody of the party rescued.] To make the offence of rescuing a party felony, it must appear that he was in custody for felony or suspicion of felony, but it is immaterial whether he was in the custody of a private person, or of an officer, or under a warrant of a justice of the peace, for where the arrest of a felon is lawful, the rescue of him is felony. But it seems necessary that the party rescuing should have knowledge that the other is under arrest for felony, if he be in the custody of a private person, though if he be in the custody of a constable or sheriff, or in prison, he is bound to take notice of it. 1 Hale, P. C. 606. If [*816] the imprisonment be so far irregular that the party imprisoned would not be guilty of prison breach by making his escape, a person rescuing him will not subject himself to the punishment of rescue. Hawk. P. C. b. 2, c. 21, s. 1, 2; 1 Russell, 383.