| Md. | Dec 16, 1880
delivered the opinion of the Court.
The defendant in error was indicted for receiving stolen goods, knowing them to he stolen.
A demurrer was filed to the indictment, and the Court below sustained the demurrer and quashed the indictment.
A writ of error it is true will not lie until after final judgment, hut the judgment in quashing an indictment is a final judgment. There can he no further proceedings upon the indictment, and although the prisoner may he held to hail to await the further action of the grand jury, yet so far as the pending indictment is concerned, he is entitled to his discharge.
It appears by the petition, that the demurrer was sustained upon the ground that the indictment did not charge a felonious receiving of the stolen goods, or any intent on the part of the receiver to appropriate the goods to himself.
The first question then is, whether the offence of receiving stolen goods, is in this State a felony or a misdemeanor P
All the hooks agree that such an offence at common law is hut a misdemeanor punishable by fine and imprisonment. 1 Hale’s P. C., 619; 2 East P. C., 142; 4 Black., 38; 3 Chitty’s Criminal Law, 950.
By the Statute 3 W. & M., ch. 9, sec. 4, any person buying or receiving any stolen goods or chattels, knowing them to have been stolen, was made an accessory after the fact. After the enactment of this statute, no indictment for the offence as a misdemeanor would lie, because the misdemeanor was merged in the felony. 3 Chitty’s Crim. Law, 951. And unless the principal felon was convicted, the receiver as an accessory after the fact could not he convicted. 2 Hawk, P. C., Book 2, ch. 29, sec. 11; 2 East’s Crown Law, 144. If then the principal felon escaped or was kept out of the way, the receiver went unpunished. To remedy this, 1 Ann., Statute 2, ch. 9, sec. 2, provided that if the principal felon could not he taken, it should he lawful to prosecute such offence as a misdemeanor, although such principal felon had not been convicted.
And it was held in Wilkes’ Case, 1 Leach’s Crown Law, 103, by the twelve Judges, that a receiver of stolen goods might he prosecuted and convicted of the offence as a misdemeanor, although the principal felon was known, unless it appeared from the finding of the jury, that the principal was out of custody by collusion, and could have
If then it be true, that the Statutes of 3 W. & M., ch. 9, sec. 4; 1 Ann., ch. 9, sec. 2, and 5 Ann., ch. 31, secs. 5, 6, extended to the province of Maryland, as stated in Kitty’s Rep, on Statutes, 179, 180, the indictment in this case charging the offence as a misdemeanor was a good indictment, because it does not appear in the record that the principal felon was out of. .'custody by collusion, and could have been convicted when' this indictment was found.
The offence in this State has always been considered as a misdemeanor. Kearney’s Case, 46 Md., 16. It was not necessary therefore to allege in the indictment, that the property in question was feloniously received by the defendant in error.
In regard to the other question whether it was necessary to charge in the indictment, that the traverser received the stolen goods for the purpose of converting them to his own use, the authorities are all one way. If they were received with an honest intent, that is to say, for the purpose of keeping them for the owner, such a receiving would not of course be within the meaning of the law. But on the other hand it is not necessary, as in larceny, that the receiving should be lucri causa. If one receives stolen goods, knowing them to be stolen, for the mere purpose of concealment, without deriving any profit at all, or merely to assist or aid the thief, such a receiving is within the statute. 1 Hale, 620; Rex vs. Davis, C. & P., 177. In this case, Gurney, B., said “that if the receiver takes without any profit or advantage, or whether it be for the purpose of profit or not, or merely to assist the thief, it is precisely the same.”
It is clear, therefore, that the Court erred in sustaining the demurrer to this indictment, for the reasons set forth in the assignment of errors. The record, however, is brought into this Court, at the instance of the State,
Where the offence charged is an offence at common law, and is itself manifestly illegal, the averment that it was done unlawfully may not he necessary. 1 Chitty Crim. Law, 160; 2 Hawk., Book 2, sec. 25. But the mere receipt of stolen goods, knowing them to he stolen, was not per se an offence at common law, because the owner may lawfully receive hack his own goods, knowing them to he stolen, provided there he no agreement to favor the thief; or one may lawfully receive stolen property for the purpose of keeping the goods for the owner. 2 East’s Crown Law, ch. 25, sec. 141; 1 Hale, 650. And accordingly we find in Ghitty, Archholá\, and in fact in all the hooks of forms, the averment that the goods were unlawfully received.
It was suggested in argument, that the words “ against the peace,” &c., to be found in the conclusion of the indictment is a sufficient averment, that the act was done ■unlawfully. The words contra pacem, it seems were considered necessary in all indictments, except for mere non-feasance, because all offences subject to public prosecution, tend to the disturbance of the public peace.
But where one is charged with a common law offence, the mere averment that it was done contra pacem, does not dispense with the necessity of setting out in proper terms the circumstances necessary to constitute the alleged common law offence.
It is a general rule, that nothing material shall he taken hy intendment or implication, hut that in all cases the indictment must describe with certainty the offence
If it he an offence created by statute, it is only necessary to describe it in the language of the statute. In this State, the Code merely prescribes the punishment for receiving stolen goods, and does not in any manner change the nature or character of the offence itself. It is necessary, therefore, to set out in the indictment, all the circumstances necessary to constitute the offence at common law, and inasmuch as it was necessary at common law to constitute the offence, that the party charged should receive the property unlawfully, we are of opinion that it must be so averred in the indictment. The indictment in this case does not allege that the goods were unlawfully received by the traverser, and the judgment must therefore he affirmed.
Judgment affirmed.