143 N.E. 258 | NY | 1924
Penal Law, section 2, defines "principal" as follows:
"Principal. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a "`principal.'"
Code Criminal Procedure, section 399, provides:
"A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." *465
The conviction herein on a charge of receiving stolen goods was had on the uncorroborated evidence of the thief.
The question is whether the thief who delivers stolen goods to a receiver, who takes with guilty knowledge, is an accomplice of the receiver. The fact that the receiver is not in the absence of prior accessorial acts an accomplice of the thief in the larceny is irrelevant. The crimes of larceny and receiving are separate, distinct offenses. (Penal Law, § 1308; People v. Zimmer,
The test is whether the alleged accomplice can be indicted for the offense. Sometimes as in prosecutions for abortion, the co-participant is regarded as the victim rather than the prepetrator of the crime (Dunn v. People,
If the proper test is not whether the alleged accomplice is indictable for the same offense, but whether he has taken a guilty part in the commission of the crime (McLAUGHLIN, J., inPeople v. Hyde,
In perhaps a majority of the jurisdictions which have passed upon the question, the rule is that the thief is not an accomplice of the receiver within the rule requiring corroboration of the evidence of an accomplice. (Leon v.State,
While no controlling case in this court is found, the weight of authority below is in favor of the contention of the appellant. Some doubt was cast ad arguendo on the rule that the thief is an accomplice of the receiver in People v. Ammon (
In People v. Levine (
The judgment should be reversed and a new trial ordered.
HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment reversed, etc. *467