State v. Calvin

Jul 15, 1849

Versions:22 N.J.L. 207

Randolph, J.,

delivered the opinion of the court.

As diоses in action and bank bills had no intrinsic value at common law, and were not the subject of larсeny or robbery (1 Hawk. 142; 4 Bl. Com. 234; Arch. Cr. Pl. 65), the question is, wheiher they are included in the statute respecting the receiving of stolen goods or goоds and chattels taken by robbery. The language of the act is (Rev. Stat. 279, § 72), “if any person shall receive оr buy any goods or chattels that shall be stolen or taken by robbery,” &c. In the thirty-fourth, thirty-fifth, and thirty-sixth sections of thе same act, which treat of the crime of larceny, the phrase used is, “ shall steal of the money or personal goods and chattels,” but in the thirty-*208seventh section, which applies to double larcenies, the words “ goods and chattels,” only аre used. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Sections thirty-eighth and thirty-ninth, respecting robbery, and assault with intent to rob, &c., make use of the words “ money or personal goods and chattels,” ánd the forty-fifth section makes the stealing or taking by robbery of any bank bill or note, bill of exchange, order, &o., a misdemeanor of the same degree and nature as if the offender had stolen or taken by robbery “ any other goods of like value, with the money due on such bank bill,” <$lg., “ money, wаres, merchandise, goods, or chattels ” are used in the fifty-second section, which relates to obtaining goods under false pretences. The same phraseology is used in all the preсeding statutes applied to the respective crimes,-as is now used in the revised statutes, they bеing copied almost literally from the English statutes. Thus the 3 W. & M. o. 9, § 4, states, that if any person shall “ buy or receive any goods or chattels ” feloniously taken or stolen, he shall be deemed an accеssary; and 5 Anne, e. 31, 4 Geo. 1, e. 11, and 22 Geo. 3, o. 58, all relating to receivers of stolen ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍goods, make use of the words “ goods,” or “ goods and chattels,” only. “ But,” says a learned author, “ it has often been determined that receivers of stolen money are not within the statutes.” See 2 East’s Or. Law 748. In the case of Sadi and William Morris, 2 East 748, and Leach’s Or. Cas. 404, it was directly ruled, by a majority of the ten judges, that bank notes were not within the statutes relating to the receiving of stolen goods: one of the judges thought the construction would have been the same, if the act of 2 Geo. 2, which first made the stealing of bank bills felony, had been passed prior to thе act of 3 W. & M.; but other judges thought that inasmuch as 2 Geo. 2 had rendered the stealing of bank notes felony, it drew after it all the incidents of felоny at common law, and therefore included receivers as accessaries after thе fact; the majority, however, considered the offence not within the statutes, and refer to Coyle’s case, 8 Co. 33; Yelverton 68; Miller v. Ran, 1 Burr. 457. See, also, 3 Burn Justice, Title Larceny 38; 4 Bl. Com. 133, note (12). In Rex v. Anne & William Gaze (Russ. & Ryan 385), whо were convicted, the former ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of stealing, and the latter of *209receiving a promissory note, eleven of the judges were unanimously of the opinion that William Gaze was not rightfully convicted undеr the statute of 3 W. cfr M. Upon the reason assigned by Justice Ashurst, in Rex v. Sadi and William Morris, that although 2 Geo. 2, making the stealing of notes and securities felony, would draw after it all the commоn law incidents of felony, and render accessaries liable, yet receivers were not аccessaries at common law, and were not included. This appears to be the settled construction of the English statutes, though there are some cases not entirely reconcilable with it. Thus, in the King v. Crone, defendant was convicted of a misdemeanor for receiving a promissory notе under the act 23 and 24 of Geo. 3, which mentions only goods and chattels. 3 7?r. Or. Ca. 47. So there have been several convictions for receiving bank bills undеr 12 Anne, a. 7, which mentions money, goods or chattels. In Rex v. Vyse, 1 Br. Cr. Ca. 218, the conviction was sustained only on those counts which charged the promissory notes as so many pieces of stamped paper of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍goods and chattels of J. W. These difficultiеs however, have all been obviated in England by the passage of the statute of 3 Geo. 4, 24, which makes the receiving of bank bills, promissory notes, and other securities, a distinct and independent offence. The case of Boyd and wife (to be found in 3 City Hall Recorder 57), puts the same construction on the Yew York statute as Rex v. Morris does on the English acts; and since that decision the Yew York statute has bеen amended. Our statute makes the receiving of goods and chattels stolen or taken by robbеry a distinct offence, and not as accessory to the larceny or robbery; and allbough subsequent sеctions render the stealing or taking by robbery bank bills, as well as goods and chattels, an indictable offence, yet these cannot draw after them, as a necessary consequence, аnother distinct and independent offence; so that whether common law or statutory accessaries are included or not in the principal act under the English statute, neither can be included under ours, for that embraces no such offence as accessory to the larceny or robbery, but the receiving is a misdemeanor by the statute, and by that, which alone creates the *210crime, must it be defined and specified ; and as that does not include bank bills, although the other sections of the act do, it is to be presumed that the legislature never intended that the receiving of stolen bank bills should be an indictable offence. In the ease of Sadi and William Morris (before referred to) thе court remark, that bank bills having no peculiar mark may enter into the currency, be passed аs such, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and so received ; and hence the propriety of including them in the offence for receiving stolen goods is much questioned.

The indictment, therefore, cannot be sustained.