State v. Moxley

103 P. 655, 54 Or. 409, 1909 Ore. LEXIS 63

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The only witnesses as to Stevens’ connection with regard to the horse in controversy, are Stevens himself and Howard. Both of these witnesses agree that the horse had been taken from the range and turned into Moxley’s pasture before any arrangement or talk was had with Stevens about gathering up the herd that was subsequently taken to Washington. There was no testimony that Stevens had anything to do with the taking of the horse in question, and, this being the case, his subsequent purchase of the animal would not make him an accomplice, even if he had knowledge of the previous theft. Blackstone, Book 4, p. 38; Harris v. State, 75 Tenn. 124; Springer v. State, 102 Ga. 447 (30 S. E. 971). Blackstone states the rule as follows:

“An accesory after the fact may be where a person, knowing a felony to have been committed, receives, relieves, comforts or assists the felon. * * To buy or receive stolen goods, knowing them to be stolen, falls under none of these description. It was therefore at common law a mere misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon.”

In the case at bar the larceny was complete, according to all the testimony, before Stevens had anything to do with the animal. The defendant had selected it upon the range and suggested to Howard to steal it, and he and Howard together had rebranded it and turned it into defendant’s pasture before any conversation was had with Stevens regarding a plan to steal other horses. There is no evidence to indicate that Stevens took this horse for any other purpose than to detect and punish the men who stole it; but, if the fact were otherwise, he would have been guilty of the substantive crime' of receiving stolen goods, and not of larceny. We are aware that there are respectable authorities that hold that a receiver of stolen goods is an accessory after the fact of the principal felon, and therefore an accomplice; but we think that logic and the better authority sustain the. opposite view, especially in a State like ours, where the statute by its terms has made larceny and the receiving of stolen goods distinct and substantive offenses.

2. It is also contended that the evidence shows that defendant’s only participation in the offense was by altering the brand, and that he cannot be convicted of general larceny, but should have been tried for larceny by altering á brand. The recent possession of the stolen property, the manner in which he kept it and dealt with it, his. statements to Stevens, that McAllister was the owner of it, his dealing with it as his own — all tend to show him to have been a principal in the theft, and to corroborate Howard’s testimony that he alone profited by it.

The judgment of the lower court is affirmed.

Affirmed.