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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; frorn 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. 767. 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 thein 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 Wbinroe 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;
(@) 1 Eng. C. C. 332. (6) 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 joiọt 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 joini, 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. 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 (6).
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 muiton, 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 (6). 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 seeins, in strictness, admissible to prove the guilty knowledge. Davis' case, 6 C. and P. 177 (d); see ante,
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.