Opinion
June Term, 1821.
A receiver of stolen goods, under the value of twelve pence, who is tried and found guilty, when the thief has never been prosecuted, but is running at large, amenable to process, is not liable to be punished, and no sentence can be pronounced against him.
THIS was an indictment from WAKE, for buying and receiving of a negro slave, Essex, certain goods, of the value of six pence, which defendant knew Essex had stolen, and the indictment concluded, "contrary to the form of the statute." It appeared that Essex had never been prosecuted, but was running at large, amenable to process. The court instructed the jury to pass upon the facts and find whether the defendant was guilty of them, as charged in the bill. The jury found the defendant guilty, and the court pronounced sentence, not according to the act of Assembly, but as for an offense at common law, from which the Attorney-General appealed.
The defendant, if guilty of any offense, is so at the common law, for the act of the Legislature, passed in 1797, ch. 19, in making the receivers of stolen goods accessories after the fact, relates to such offenses only as are capable of having accessories. And that part which authorizes a prosecution for a misdemeanor for receiving stolen goods refers to such receivers as are embraced in the preceding (464) section (see 4 Bl. Com. Foster, 73). And according to Goff's case, in this Court, July Term, 1809, if he was within the provisions of this act he could not have been put upon his trial while the principal offender was unconvicted and amenable to the process of the Court (see Foster, 371). And I must confess that after a very diligent examination I am brought to believe that the act imputed to him is not punishable at all. In petit larceny there are no accessories, but all who are concerned are guilty as principals, if at all. In treason there are no accessories, for all concerned are traitors; but for opposite reasons the magnitude of the offense in treason renders criminal in the highest degree all who in any manner are concerned in it; their offense is not in truth and reality as great as that of those who actually perpetrate the treasonable act, but the law, knowing no greater crime than treason, and the aider or advisor being guilty of that offense, it has no standard by which the different degrees of guilt between the two species of offenses or treason can be measured or graduated, as the law punishes with death both the robber and the murderer, not because their crimes are equal, but because robbery is thought to deserve death, and no more than death can be inflicted on the murderer. In petit larceny and smaller offenses only those who are concerned in the commission of the offense, in other words, those who in higher crimes would be principals in the first or second degree, are deemed to be concerned or criminal at all, the law barely punishing the principals or actors for de minimis non curat lex. If it is asked how it is shown that receivers of stolen goods are not concerned in the act I think it is capable almost of demonstration: a receiver of the thief in grand larceny is an accessory, and of course a felon; to receive the stolen goods in such case is a bare misdemeanor, which is less than felony. In petit larceny the receiver of the thief is neither an accessory nor a felon, it is no offense at all; therefore receiving the goods, which is shown to be a less criminal (465) act, cannot be any offense at all. I cannot distinguish this case from Evans's case, reported in Foster, 73. I understand that in that case the twelve judges decided not only that he was not subject to transportation under the 14 Geo. but that he ought not to have been tried at all, and he was discharged accordingly. If he was not guilty under the act of Geo., if the offense of which he was convicted was a misdemeanor at the common law, he would have received a common law punishment. I am therefore compelled to say that I can find no law for punishing the defendant. I am aware that 2 Hawkins, P. C., says that possibly to receive a person guilty of a bare misdemeanor is a contempt of law, as tending to thwart the administration of justice. He may be correct, but the books furnish no precedent of such a prosecution for such an offense; it may possibly be a contempt of the law to receive the offender, as thereby he may escape and the law be eluded; but to receive the goods can be made a contempt of the law in enabling the offender to escape by a very strained construction only. But if it was a misdemeanor at the common law to receive goods under the value of 12d., yet no judgment can be given against the defendant in this case: not at common law, because the principal felon has not been convicted, nor under the statute of 1797 (New Rev., 847, ch. 485). That statute, so far as regards making the receivers of stolen goods accessories after the fact, can only be applied to those cases which admit of accessories (Foster, 73; Evans's case, 4 Bl. Com.), and there are no accessories in petit larceny. But admitting that it does apply otherwise, the principal thief in this case is stated to be at large. See Goff's case in this Court, July Term, 1809. It appears by the preamble to the act that the mischief intended to be remedied was the immunity afforded by the rules of the common law where the principal felon eluded the process of the law. Where the principal did not elude the process, but was (466) amenable, there was no mischief as the Legislature conceived, and it did not in that case intend to change the law. And this construction is much strengthened by the words at the close of the first section, to-wit: "Which shall exempt the offender if the principal shall be afterwards convicted." The same inconvenience existed by the common law rule as to receivers of stolen goods, of which it appears the Legislature was aware by using the words, "and also make it their business to conceal such offenders"; the act then makes them accessories after the fact, and that they may be prosecuted as for a misdemeanor and punished as set forth in the preceding clause, although the principal felon be not before convicted of said felony, which shall operate as a bar and prevent the offender from being punished as accessory, if such principal felon be afterwards taken and convicted. From the whole of which it is quite evident that the Legislature intended to make receivers of stolen goods accessories where the principal offense admitted of accessories, and to punish them for a misdemeanor only where the principal offender was not taken; that where he was amenable they were satisfied with the rules of common law; and the only alteration introduced by this act is, by the first section, to subject accessories to trial and punishment for a misdemeanor where the principal offender eludes the process of the law; and by the second section, to make receivers of stolen goods accessories (in offenses capable of having accessories), and to subject them to trial and punishment for a misdemeanor where the principal was not taken, but eluded the process of the law (Foster, 373).
I am, for these reasons, of opinion that no judgment can be passed on the defendant.