197 A.D. 675 | N.Y. App. Div. | 1921
Lead Opinion
The defendant was convicted in part upon the testimony of the thief who stole the goods, and the trial judge charged the jury that the thief was not an accomplice of the defendant and that, therefore, they might convict upon the testimony of the thief without further corroboration, warning the jury, however, that they should accept with caution the testimony of one who was before them confessing his guilt. This charge raises the only question for our consideration. It has been held in this State that a thief is not an accomplice of the receiver in the crime of receiving stolen goods. (People v. Cook, 5 Park. Cr. Rep. 351; People v. Ammon, 92 App. Div.
In other States we find authority divided. In Arizona, Colorado, Georgia, Indiana, Iowa, Minnesota, Missouri, New Jersey, Oklahoma, Oregon, Tennessee and Utah the law seems to be established that the thief is not an accomplice of the receiver of stolen goods so as to require corroboration of his testimony as against the receiver. The contrary rule seems to have been held in Arkansas, California, Illinois, Kansas, Pennsylvania and Texas.
The cases in the Third and Fourth Departments holding that the thief is an accomplice of the receiver of stolen goods contain no discussion of the question but rather an assumption of the rule of law and the discussion is confined to the sufficiency of the corroboration. Upon an examination of the authorities and upon a consideration of the logical results of such a holding, I am led to the conviction that the authorities in the Third and Fourth Departments are not well founded, and that the thief is not an accomplice of the receiver of stolen goods, so that his testimony as against such receiver does not require corroboration within the requirements of the criminal law. It is difficult, if not impossible, to lay down any guiding principle which will apply to all cases in determining what is an accomplice within this provision of section 399 of the Code of Criminal Procedure. In this case, however, the conclusion is simplified by the nature of the crime. The thief may sell the goods to an innocent purchaser and the purchaser is guilty of no crime. If the sale be made to a party who has knowledge of the fact that the goods are stolen, the purchaser is guilty of a crime. To hold that the thief is an accomplice in the crime of criminally receiving if the purchaser has knowledge of the theft, and that no such crime is committed either by the purchaser or the thief in the sale of such goods if the thief does not know that
The judgment should be affirmed.
Dowling, J., concurs.
Concurrence Opinion
I concur in the result of Mr. Justice Smith’s opinion. In my opinion the thief is not the accomplice of the receiver of the goods stolen, except where the stealing of the particular goods is induced or procured by the receiver, in which as the main purpose of the theft is to dispose of the particular goods to the receiver, and it is through his incitement and inducement that the theft is committed, they are both united in a common plan to steal goods for the purpose of disposing of them to the receiver; and, therefore, I am of opinion that not alone would the receiver be the accomplice of the thief in the larceny, but the thief would be the accomplice in the receiving.
In the case under consideration the receiver merely advertised his business by telling the thief that if he had goods to dispose of he would take them from him. There was no inducement to the particular theft. The evidence tended to show the guilty knowledge of the receiver, and no corroboration was necessary of the thief’s testimony.
Clarke, P. J., and Greenbaum, J., concur.
Judgment affirmed.
