Opinion
No. 37307.
December 12, 1949.
1. Criminal law — larceny — receiving stolen property.
Where the accused assured another person that if the latter would pick up a good car and bring it over to him the money would be ready for it, no particular car being mentioned, the accused would not be guilty as an accessory to a subsequent theft, but would be of receiving stolen goods.
Headnote as revised by Alexander, J.
APPEAL from the circuit court of Humphreys County; ARTHUR JORDAN, Judge.
North North, for appellant.
The court below erred in admitting the testimony offered by the State over the objection of the defendant relating to the offense of conspiracy to commit larceny, disconnected from and unrelated to the crime charged in the indictment, to-wit: receiving stolen property, knowing the same to have been stolen. Whitlock v. State, 66 Miss. 345, 6 So. 237; Benoit v. City of Bay St. Louis, 103 Miss. 218, 60 So. 137 (1912); Raines v. State, 81 Miss. 489, 33 So. 19 (1902); Collier v. State, 106 Miss. 613, 64 So. 373 (1914); Baygents v. State, 144 Miss. 442, 110 So. 114 (1926); McLin v. State, 150 Miss. 159, 116 533, (1923); Willoughby v. State, 154 Miss. 653, 122 So. 757 (1929); Floyd v. State, 166 Miss. 15, 148 So. 226, (1933); Carter v. State, 167 Miss. 331, 145 So. 739 (1933); Slaydon v. State, 102 Miss. 101, 58 So. 977, (1912); Cook v. State, 81 Miss. 146, 32 So. 312 (1902); Collins v. State, 99 Miss. 52, 54 So. 666, (1910-11); Kehoe v. State, 194 Miss. 339, 12 So.2d 149, (1943); Skinner v. State, 198 Miss. 505, 23 So.2d 501 (1945).
The court erred in admitting the testimony of the witness L.S. Hayden in regard to a confession to a crime of receiving stolen property, when the State had not proved the corpus delicti and had only offered evidence to support a charge of grand larceny. Crabb v. State, 152 Miss. 602, 120 So. 569 (1929).
The court erred in refusing the instruction for the defendant, reading as follows, to wit: "The court instructs the jury to find the defendant not guilty." 52 C.J.S. Sections 55 and 58, pages 845, 846, 847 849; Murray v. State, (Miss.) 36 So. 541; Hoggett v. State, 40 Miss. 522; Devine v. State, (Miss.) 96 So. 696; Wince v. State, (Miss.), 39 So.2d 882; Manning v. State, 129 Miss. 179, 91 So. 902; Thomas v. State, (Miss.) 39 So.2d 272.
The verdict of the jury was against the overwhelming weight of the credible testimony, the State having relied chiefly on the testimony of the witness Walter Crawford, an accomplice, and confessed felon, said verdict evidences passion and prejudice on the part of the jury, and was not a verdict of a fair and impartial jury. Upton v. State, 192 Miss. 339, 6 So.2d 129 (1942); Ladner v. State, (Miss.) 9 So.2d 878 (1942); Ewing et al. v. State, (Miss.) 9 So.2d 879 (1942); Miller v. State, 198 Miss. 277, 22 So.2d 164 (1945); Street v. State, 196 Miss. 818, 18 So.2d 297, (1944); Moore v. State, (Miss.) 20 So.2d 96 (1944); Perdue v. State, 199 Miss. 624, 25 So.2d 185, (1946).
George H. Ethridge, Assistant Attorney General, for appellee.
Appellant argues that appellant was a principal in the larceny and that a person who is a principal in a larceny cannot be convicted of receiving the stolen goods or keeping it in his possession after the larceny has been committed. It is true that a principal in a larceny cannot be convicted of receiving stolen goods. The evidence here does not make out such a case. I concede that the law is that a principal cannot be convicted of receiving stolen goods provided the goods received are the same as the goods stolen. This has been recently discussed and decided in Thomas v. State, 205 Miss. 653, 39 So.2d 272, and other cases cited in the brief of appellant. The facts in the present case do not bring that principle into play and the case does not bear on the present prosecution. There are many cases cited under Section 2449, Code of 1942, bearing on the offense of said statute and there is no difficulty about the law of the case, and it is not necessary to array or cite and analyze a great many cases from our decisions and from the text books dealing with this offense. I cite the recent case of Crowell v. State, 15 So.2d 508, as bearing on this question. Most of the numerous cases cited by appellant are not applicable to the facts of this case and the conclusion that the judgment must be affirmed on the facts in this case seems to be conclusive and mandatory for an affirmance.
This appeal is from a judgment of conviction for receiving stolen goods. The case may be simply stated. The prosecuting witness was the party who stole the property in question, an automobile, and delivered it to appellant. His testimony was that "He (appellant) said if I could pick up a good car and bring it over to him my money would be waiting for me." Appellant was engaged in the used car business and operating a garage. It is disclosed also, not without some ambiguity, that he did a little preaching on the side. Which of the two activities constituted his major interest is a matter of unprofitable speculation. So far as the record reveals, the pursuit of his evangelistic digressions had earned for him only the sobriquet "Preacher".
The car was stolen in Greenwood and brought to appellant's place of secular business at Belzoni, and was identified by its owner, with its motor numbers disfigured. There were, however, certain secret numbers which had not been tampered with and which identified the automobile. The appellant confessed to a police officer of Greenwood that he had received the car from Walter Crawford, and had sold it to one Irving who corroborated the testimony regarding such sale by the appellant and the release of the car to the owner. A police officer of the City of Greenwood testified that appellant admitted receiving this car and its later sale, and that "He said he knew it wasn't right." He further explained that he meant by this that he knew it was stolen.
The assignment most earnestly pressed is that the testimony shows the appellant to have been an accessory to the stealing of the car, and was therefore guilty, if at all, of larceny. Thomas v. State, 205 Miss. 653, 39 So.2d 272, is cited to support this theory. A casual inspection of this case discloses that Thomas was present on the occasion of the theft and assisted in loading the stolen property into his car. This element is also present in Wince v. State, 206 Miss. 189, 39 So.2d 882, in which the property proposed to be stolen was pointed out to an employee of the Valley Dry Goods Company, who, carrying out the instructions of Wince, withdrew the goods from the shelves and delivered them to Wince in the employer's truck. (Hn 1) In the instant case, the directions to the thief were too general to constitute the appellant an accomplice or accessory to the particular theft. His assurances to the thief that if he would steal and bring to him a good car he would receive and pay for it constitutes a mere declaration of his availability as a fence or outlet for stolen property if the thief cared to avail of his services. He had no knowledge that any particular car, or any car at all, would be stolen.
The crime of larceny had been completed when the car was delivered to Harper. He had no part in either the caption or the asportation. 45 Am. Jur., Rec. Stolen Property, Section 10. Such circumstance distinguishes the present case from such cases as Hogsett v. State, 40 Miss. 522, and Devine v. State, 132 Miss. 492, 96 So. 696. The concept of the larceny as a continuing trespass whereby acceptance by Harper of the stolen property would constitute a felonious participation is borrowed from the cited cases, Watson v. State, 36 Miss. 593, and Johnson v. State, 47 Miss. 671, where application of the principle was confined to the common law device whereby the thief by asportation of the property, would transport as a part of his plunder the superimposed burden of a shifting jurisdiction over himself.
While there are some authorities which hold that a constructive participation in the theft accords to the State an election between larceny and receiving stolen goods, it is clear here that the appellant was not guilty of larceny but of the receiving.
The other assignments fall with the above conclusion and will not be further discussed.
Affirmed.