State v. JacksonState v. Jackson
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Defendant, as a second offender, was charged and jury-convicted of receiving property which had been previously stolen from one Charles Gilbert.
The state undertook to establish defendant’s guilt of receiving stolen property via his statement to a deputy sheriff, following arrest, to the effect that he (defendant) did not initially steal from the owner but “that he knew [the property was stolen] because he told me he stole it from the people who stole it from Mr. Gilbert.” Defendant, according to the deputy, said that “Lorraine Padia, Butch Smith and his ex-wife, Cindy Jackson,” originally stole the property. Defendant testified that most of the property in question, as well as other property, had been brought to a house he was then sharing with Lorraine Padia. He said that Butch Smith and his (defendant’s) ex-wife removed some of the property before defendant and Lorraine separated. Defendant asserted that when he and Lorraine parted company, he took‘from the premises the property he was accused of receiving because it belonged “mostly” to Butch Smith who “had about $300.00 worth of records that belonged to me.” Upon the state’s rebuttal, Butch Smith denied stealing or ever having in his possession the property defendant was accused of receiving.
Our statute,
The essential elements of the offense made criminal by
Under the first point relied on, defendant says that, whether he alone, or together with others, was the captor of the property from the owner or whether he stole the property “from the people who stole it from Mr. Gilbert,” he cannot be guilty of receiving stolen property in either event. The first part of this claim is patently correct under the authorities just cited. As to the second segment of defendant’s point, it must be remembered that the unexplained possession of recently stolen property does not raise an inference that the possessor is guilty of receiving stolen property from another [State v. Johnson, 580 S.W.2d 254, 259 (Mo. banc 1979)] and that the only state evidence as to how defendant came into possession of the property was that he stole it from the people who had first stolen it. There is respectable authority to the effect that to be guilty of receiving stolen property the goods must be received from the first thief with his consent, but if the goods are stolen by a second thief from the first thief, the second thief is guilty of larceny but not guilty of receiving stolen property. II F. Wharton, A Treatise on Criminal Law 1456, § 1241 (Eleventh Ed.1912); II R. Anderson, Wharton’s Criminal Law and Procedure 288, § 569 (1957); Clark & Marshall, A Treatise on the Law of Crimes 973, § 12.37 (Seventh Ed.1967); R. Perkins, Perkins on Criminal Law 325, Sec. 6 B. (2d Ed.1969). There is likewise authority that the prosecution may elect to charge the second thief either with larceny or receiving stolen goods. 76 C.J.S. Receiving Stolen Goods § 14 b., at p. 19, and cases there cited. Also see, United States v. Kelly, 519 F.2d 251, 253 (8th Cir. 1975), holding that a felon who acquires a weapon by theft can be a person “who receives, possesses or transports in commerce” under 18 U.S.C. App. § 1202(a).
Section 560.270 was obviously intended to punish any “person who shall buy, or in any way receive . . . any property that shall have been [previously] stolen from another.” It is apparent that for there to be a “person who shall buy” previously stolen property, there must be a two-party transaction between a seller and a buyer. Likewise, in general context of the statute, any “person who shall ... in any way receive” from another person, denotes a two-party transfer of possession from a donor, giver, passer, etc., to a receiver, recipient, acceptor, etc. This problem appears to have been obviated by the enactment of
In our view the facts peculiar to this case make the evidence insufficient to sustain the jury’s conviction of defendant under. § 560.270 (receiving stolen property). Cognizant of the holding in State v. Basham, 568 S.W.2d 518, 521[3] (Mo. banc 1978), the judgment nisi is reversed and the defendant is ordered discharged.
All concur.