Commonwealth v. Light

10 Pa. Super. 66, 1899 Pa. Super. LEXIS 242

• Court: Superior Court of Pennsylvania
• Decided: March 23, 1899
• Status: Published

Opinions

Opinión by

W. D. Porter,

The defendant was tried upon an indictment containing two counts in which he was charged, jointly with Levi Sholl, in the first count, with larceny, and in the second count with receiving stolen goods, knowing them to have been stolen. The appellant was acquitted upon the first count, but convicted upon the second.

The first specification of error relates to the charge of the court, as to the elements necessary to constitute the offense charged in the second count of the indictment. The language of the court which is the subject of the complaint was as follows : “ If you find that the defendant did not help to steal these turkeys, but that on the way into town, or at any time between the time that they took these turkeys to the buggy and the time they disposed of them, Sholl informed Light that these were stolen turkeys, and that then Light, the defendant, agreed that he would participate in the sale, go with him and participate in the sale, and that he was to participate in the profits of it, then you might find him guilty of the second count.” This constituted the entire instruction given by the court to the jury, as to what facts it was necessary for them to find in order to justify a verdict of guilty, upon a count charging the receiver of stolen goods knowing them to have been stolen. We must, therefore, decide whether the conviction was justified upon the facts set forth in the instruction, without considering other" evidence. It must be assumed that the jury found the defendant guilty of receiving stolen goods, knowing them to have been stolen, upon the following state of facts, viz: Light being in company with Sholl, who has in his possession certain turkeys, is informed by Sholl that the turkeys are stolen property, and Light agrees to go with Sholl and participate in the .sale of the turkeys and in the profits of said sale. Can the conviction be sustained upon this state of facts ? It must be observed that the instruction did not make it the duty of the jury to consider anything which was done or any circumstances connected with the transaction subsequently to the making of the agreement. The jury did not pass upon the question whether the defendant ever took any steps to carry his agreement into execution. A mere unexecuted agreement, entered into subsequently to the larceny, to receive, some time in the future, goods which are known to have been stolen, is not sufficient to constitute the crime of which this appellant was convicted. The party might refuse to carry out his agreement and decline to receive the goods. There was a locus penitentia, of which the instructions here assigned for error would deprive him: Com. v. Sheriff, 3 Brewster, 342. The intention of the parties might be defeated by some independent agency and the offense not be consummated : The Queen v. Hill, 1 Denison’s Crown Cases, 453; 61 English Common Law, 978.

But even if the agreement, recited in the instructions, had been carried out, and the appellant had participated in the sale and received from the thief a part of the proceeds, he might still not be guilty of the offense of which he was convicted. He would undoubtedly be guilty as an accessory after the fact to the larceny, but whether he was guilty of receiving stolen goods would depend upon other circumstances, the consideration of which the instructions withdrew from the jury. Under the instructions the jury were not required to pass upon the question of the custody or control of the goods by the defendant.

In order to sustain a conviction of the offense of receiving stolen goods, there must be an actual or potential possession of the goods by the receiver. If the properly comes under the control of the receiver it is not necessary that the possession be manual ; it is sufficient if he has control of the custodian, as if the receiving be by a servant, by direction of his master: Huggins v. State, 41 Alabama, 393; Regina v. Miller, 6 Cox’s Crim. Law Cases, 353. If the receiver has obtained absolute control over the property in the hands of the thief, so that the goods will be forthcoming if he so order, and the receiver arrange to have the goods delivered in his presence to the agent of the owner for a reward and they are so delivered, the evidence of possession and control has been held sufficient to justify the submission of that question to the juiy: Regina v. Thomas Smith, 6 Cox’s C. L. 554. In that case the jury found that the property was under the absolute control of the accused. If the accused has not had possession of the property and has not had control over the custodian, where the exclusive possession remains in the thieves, there can be no conviction of receiving: The Queen v. Wiley, 2 Denison’s Crown Cases, 37. The receiving of something for which the stolen property was exchanged, or the proceeds of its sale, will not support the charge of receiving stolen goods: United States v. Montgomery, 3 Sawyer, 544; King v. Walkley, 4 Carrington & Payne, 132. In every ease of this character it is essential that the jury pass upon the question of the possession or control of the stolen property by the accused. The first assignment of error is sustained.

The second specification of error offends against Rule XV., in that it mingles the charge of the court and a ruling upon the rejection of evidence, and cannot be considered.

The first assignment of error being well founded, the record must be returned to the court below to the end that the appellant be retried upon the second count of the indictment.

Judgment reversed and venire facias de novo awarded.