12 C.M.A. 3 | United States Court of Military Appeals | 1960
Opinion of the Court
Tried by general court-martial, the accused was found guilty of nine specifications of wrongful sale of various items of Government property, in violation of Uniform Code of Military Justice, Article 108, 10 USC § 908, and nine specifications of receiving the same stolen items, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934. He was sentenced to dishonorable discharge, confinement at hard labor for two years, and forfeiture of all pay and allowances. The convening authority approved the sentence. The board of review, however, set aside the findings of guilty relating to the receiving of stolen property and reassessed the sentence. The Judge Advocate General of the Air Force certified to this Court the following question:
“WAS THE BOARD OF REVIEW CORRECT IN HOLDING, UNDER THE PACTS AND CIRCUMSTANCES OP THIS CASE, THAT IT COULD NOT LEGALLY APPIRM THE FINDINGS OP GUILTY OF CHARGE II AND THE SPECIFICATIONS THEREUNDER?”
From the foregoing facts, the board of review concluded that the accused was a principal to Neri’s larcenies of the specified items of Government property. It then expressed the belief that one who is a principal to larceny may not be convicted of receiving the goods taken in the theft, basing its decision upon our opinion in United States v McFarland, 8 USCMA 42, 23 CMR 266. It is the accuracy of this legal reasoning which forms the basis of the certified issue before us.
In United States v McFarland, supra, the accused, among other charges, was found guilty of larceny of $2.00. The admitted facts demonstrated that he was not the actual thief and had no knowledge of the crime until the real culprit gave him the sum involved, informing him that the money belonged to one Price, the victim. The Government contended that McFarland’s guilt of larceny was thereby established for, by retaining Price’s money in his possession, knowing it to have been stolen and with the requisite intent, he “withheld” property from the true owner within the meaning of Code, supra, Article 121, 10 USC § 921. We unanimously held that the Government had failed to prove accused’s guilt, concluding that the term “withholding” in Article 121 involved only the crime of embezzlement. As accused’s conduct did not amount in law to that species of larceny, or, indeed, to any type of misconduct under Article 121, we necessarily found the evidence insufficient to support the findings of guilty. We also pointed out that the proof strongly suggested guilt of receiving stolen property in violation of Code, supra, Article 134, and inquired into the question whether that offense was lesser included in the crime of larceny. We expressed the belief that it was not, stating in part:
“. . . We regard it as well established that the essential elements of of proof as to larceny are incompatible with those of receiving stolen property.” [United States v McFarland, supra, page 47.]
It is difficult to perceive how our language or reasoning in McFarland, supra, led the board of review to the conclusion that Ford, as a matter of law, could not be guilty of receiving stolen property from Neri. We went no further there than to say that guilt of larceny could not be predicated upon mere proof of receiving stolen goods and that the latter crime is not lesser included in the former. That proposition has little bearing upon the situation depicted in this record, for this accused is charged with receiving stolen property and the evidence admittedly demonstrates that he received the items from Neri, knowing that Neri had' stolen them and intending to appropriate them to the use of one other than the United States. True it is that an actual thief cannot be held criminally liable for receiving the property which he he has stolen, for he cannot logically “receive” property from himself. Adams v State, 60 Fla 1, 53 So 451 (1910); 45 Am Jur, •Receiving Stolen Property, § 10; Anno
“Larceny and receiving stolen property are under our statutes separate and distinct crimes and where as here the evidence shows the defendant guilty of both crimes, we think it is optional with the state to prosecute the offender for either.”1
In Aaronson v United States, 175 F 2d 41 (CA4th Cir) (1949), the argument that the defendant could not be convicted of receiving stolen property because he had aided and abetted the original larceny was similarly rejected. There, Circuit Judge Soper succinctly stated, at page 43:
“This argument, we think, cannot be sustained. It is true that in the form in which the statute was cast at fthe time when the transaction took place a person could not be guilty of receiving the stolen property under § 101 unless the property had been stolen by another person. But these words do not mean that the receiver may not have had any association with the other person or have rendered him any assistance or encouragement before the commission of the offense. Even under the application of the rule of common law it is generally held, as we have seen, that one who induces or procures the commission of a crime, who is in other words an accessory in the technical sense, might also be a receiver of the stolen goods; and the transactions between the appellant and his co-defendants whereby the larceny was planned clearly show that he was an accessory before the fact in this sense. The same result is reached even in jurisdictions where the distinctions between principals and accessories have been abolished by statute, Note 186 ALR 1087, 1100, because the result does not turn on these distinctions but flows from the common lato rule that only where one has had a part in the actual caption of stolen goods is it impossible for him to ‘receive’ them.” [Emphasis supplied.]
See also Weisberg v United States, 258 Fed 284 (CA DC Cir) (1919), and Inman v United States, 243 F2d 256 (CA DC Cir) (1957).
In sum, we believe that the board of review erred in concluding that accused’s possible liability as a principal in the larceny bars his conviction for receiving the goods taken in the theft when he was, in fact, not the actual thief. Aaronson v United States, supra; Inman v United States, supra. Reason is the light of the law, and there is simply no basis for concluding there cannot be a criminal transfer of stolen property between the real thief and the Fagin who inspired him.
The certified question is answered in the negative. The decision of the board of review is reversed,, and the record of trial is returned to The Judge Advocate General of the Air Force for action consistent with this opinion and such further review as may be entailed by the reinstatement of the findings of guilty of Charge II and its specifications.
It is to be noted that the accused in this case was charged only with receiving stolen property. Thus, the question whether he might be found criminally liable both as a statutory principal to Neri’s larcenies and for the receiving of the items taken is not now before us and need not be decided.