10 Pa. Super. 66 | Pa. Super. Ct. | 1899
Lead Opinion
Opinión by
The defendant was tried upon an indictment containing two counts in which he was charged, jointly with Levi Sholl, in the first count, with larceny, and in the second count with receiving stolen goods, knowing them to have been stolen. The appellant was acquitted upon the first count, but convicted upon the second.
The first specification of error relates to the charge of the
In order to sustain a conviction of the offense of receiving stolen goods, there must be an actual or potential possession of the goods by the receiver. If the properly comes under the control of the receiver it is not necessary that the possession be manual ; it is sufficient if he has control of the custodian, as if the receiving be by a servant, by direction of his master: Huggins v. State, 41 Alabama, 393; Regina v. Miller, 6 Cox’s Crim. Law Cases, 353. If the receiver has obtained absolute control over the property in the hands of the thief, so that the goods will be forthcoming if he so order, and the receiver arrange to have the goods delivered in his presence to the agent of the owner for a reward and they are so delivered, the evidence of possession and control has been held sufficient to justify the submission of that question to the juiy: Regina v. Thomas Smith, 6 Cox’s C. L. 554. In that case the jury found that the property was under the absolute control of the accused. If the accused has not had possession of the property and has not had control over the custodian, where the exclusive possession remains in the thieves, there can be no conviction of receiving: The Queen v. Wiley, 2 Denison’s Crown Cases, 37. The receiving of something for which the stolen property was exchanged, or the proceeds of its sale, will not support the charge of receiving stolen goods: United States v. Montgomery, 3 Sawyer, 544; King v. Walkley, 4 Carrington & Payne, 132. In every ease of this character it is essential that the jury pass upon the question of the possession or control of the stolen property by the accused. The first assignment of error is sustained.
The second specification of error offends against Rule XV., in that it mingles the charge of the court and a ruling upon the rejection of evidence, and cannot be considered.
Judgment reversed and venire facias de novo awarded.
Dissenting Opinion
dissenting:
The instruction complained of in the first assignment of error if intended as an abstract statement of the essentials tó a conviction of one accused of the crime of receiving stolen goods, knowing them to have been stolen would be subject to. criticism as is well shown in the opinion of Judge Porter, but it was evidently not so intended; it was rather a statement of facts in dispute which the jury would have to find before they could convict the defendant in this particular case. The instruction is to be viewed and its effect determined, in the light of the fact sworn to by the defendant himself, that the turkeys were conveyed in the defendant’s buggy, to the place where they were sold, and that he drove, and the other undisputed fact that he was present when they were sold. If there were any dispute as to these facts, the instruction might be criticised, but viewing it in the light of these undisputed facts, it does not seem to me that it was either inadequate or misleading. There is no room for conjecture even, that the corrupt bargain, if made, was unexecuted, or that the turkeys were not in the defendant’s actual possession, and control, when he drove the wagon in which they were, to the place where the corrupt bargain was consummated by the sale of the stolen property.
In the case of The' Queen v. Wiley, the conclusion of the majority of the judges that the conviction was wrong, was based largely upon the point thus stated by Lord Coleridge : “ Until some bargain had been concluded, he ” (the receiver) “ never intended to take charge of it, nor in fact could he have taken possession. This therefore is not the case of a joint constructive possession; nor did the thieves intend to admit him to any actual possession except upon a bargain which was never made.” Here however the verdict of the jury has established the fact that the bargain was made, and this being so, the defendant must be deemed in possession pursuant to it when he conveyed the stolen property to the place where it was disposed of. In short, the facts stated in the instruction taken in con
This is the entire effect of the instruction, and thus viewed, I do not think it was erroneous.
Smith, J., concurs in this dissent.