the alleged joint receivers should have had actual possession. The possession may be constructive. z A., B., and C. were jointly indicted for stealing and receiving some fowls. It was proved that A., carrying a sack containing stolen fowls, went with B., at past four in the morning, into the house of C.'s father; that in about ten minutes' time A. (still carrying the sack) came out at the back door with B., preceded by C. with a lighted candle; that C. was the only member of the family up in the house; that the three went together into a stable on the same premises; that the police went into the stable after them, and found the sack lying on the floor, and the three men standing around it as if bargaining. The bench told the jury, that the taking of A. and B. with the stolen goods by C. into the stable over which he had control, for the purpose of negotiating about the buying of them, he well knowing the goods to have been stolen, was a receiving them within the meaning of the statute. The jury convicted A. and B. of stealing the fowls, and C. of receiving the fowls knowing them to have been stolen. Upon a case, stating the above facts, the question asked being, whether the conviction of C. was proper, it was held by a majority of the judges (eight to four), that the conviction was wrong. The majority were of opinion that C. did not receive the fowls, as they all along remained in the mutual possession of A. and B., and were never under C.'s control, and it was not the intention of A. and B. that C. should have them, except on the contingency, which never happened, of his completing a bargain for them. The minority held, that as C. coöperated with A. and B. in the common purpose of carrying the fowls into the stable, he had a joint possession with them, and that as he knew that the fowls were stolen, and assisted in the removing them for the purpose of negotiating about the purchase, he had a possession with a wicked purpose, and therefore might properly be convicted as a receiver. a A master and servant may be jointly convicted of a receiving Moody C. C. 257. Ante, § 434. See post, § 3356 a. The necessity of an election is removed by Stat. 14-15 Vict. under which there can be a conviction of defendants severally. z R. v. Rogers, 37 L. J. M. C. 83. a R. v. Wiley, 2 Den. C. C. 37; 1 Eng. L. & E. R. 567. which took place in the master's absence by the servant under the master's direction. a1 § 1893. (h.) Goods must be received from felon or his agents. -A., who had stolen goods, and had them in his pocket, was caught by the owner, who sent for a policeman. The policeman took the goods out of A.'s pocket, but afterwards, in concert with the owner, gave them back to A., who was told by the owner to go and sell them where he had sold others. A. took and sold them to B., and B. bought them believing them to have been stolen. It was held, that B. could not be convicted as a receiver, the goods having been previously resumed by the owner. b § 1894. So, in a subsequent case, a prisoner was convicted of feloniously receiving stolen goods under the following circumstances: The goods were stolen, and sent by the thief in a parcel by railway, addressed to the prisoner. A policeman belonging to the railway company, from information he had received, examined the parcel at the railway station at the place of its destination, and stopped it. It was called for by one of the thieves on the day of its arrival, and refused to him. A porter of the company, the next day, by the direction of the policeman, took it to a house which the thief who had called for it designated, and it was there received by the prisoner: It was held, that the conviction was wrong, as the goods had ceased to be stolen goods,. within the statute, at the time of the receipt by the prisoner. c § 1895. (i.) Receiving from thief to obtain a reward. — If a' stranger, pursuant to an arrangement with one whom he knows has stolen goods, invite an interview with the owner, and afterward receive the goods under the mere color of an agency, but in fact to make a profit out of the larceny, he is within the statute against receiving stolen goods. Thus, in a late case, W., a police justice of the city of New York, having learned that a large amount of funds had been stolen from a bank in Maryland, invited an interview with the agents of the latter, expressing his belief that the property could be recovered. An interview accordingly took place, in which W. proposed to procure the restoration of the property upon condition that the bank would al R. v. Parr, 2 M. & Rob. 346. 6 R. v. Dolan, 29 Eng. Law & Eq. R. 533; Dears. 436; 6 Cox, 449. c R. v. Schmidt, 10 Cox C. C. 172; 1 L. R. C. C. 15. pay therefor at the rate of ten per cent. on the amount, saying his employer would not take less. After several days spent in negotiating, during which W. professed to be acting with entire knowledge as to the views and wishes of the thief, it was finally agreed that the property should be restored for a less sum than the one first demanded, and a place was fixed for carrying the agreement into effect. W. brought the property to the appointed place and delivered it to the agents of the bank, who thereupon paid him the stipulated reward. It was held, that though W. received the property under color of an agency from the bank, the jury were authorized to find that he had procured the agency under a previous arrangement with the thief, intending to make a profit himself out of the crime, but concealing such intent from the bank, and if so, he was punishable as a receiver of stolen goods. If W., it was said, had only sought for such a reward as was insisted on by the thief, before giving up the goods, together with a fair compensation for his own trouble, he proposing and being allowed for the whole as such, the case might have been different. There might, however, be a case, it was intimated, where, if the goods have been stolen from the bailee by another, the owner may render himself criminally responsible by fraudulently receiving them from the thief.e d § 1896. (j.) Husband and wife. A wife cannot be convicted of feloniously receiving goods stolen by her husband.f Nor can she in England be convicted jointly with her husband of receiving.g A husband is responsible for his wife's guilty reception, he knowing and afterwards adopting the same. h But it is otherwise when the reception is without his knowledge and apart from him. Thus where husband and wife were jointly indicted for receiving goods, knowing them to have been stolen, and the jury found both guilty, and that the wife received the goods without the control or knowledge of and apart from her husband, and that he afterwards adopted his wife's receipt: It was held, that the conviction against the husband could not be sustained. This, of d People v. Wiley, 3 Hill N. Y. R. 194. e Ibid. g R. v. Matthews, 1 Den. C. C. 596, 1 Eng. L. & E. 549. h R. v. Woodward, Leigh & Cave f R. v. Brooks, Dears. C. C. 184; C. C. 122; 9 Cox C. C. 95. 6 Cox C. C. 148. Ante, § 80. i R. v. Dring, Dears. & B. C. C. 329; 7 Cox C. C. 382. course, does not in any way impinge on the principle that a husband may be convicted of feloniously receiving property which his wife has stolen voluntarily and without any constraint on his part, if he received it knowing that she had stolen it.j § 1897. (k.) What kind of possession will support indictment. - Manual possession or touch is unnecessary in order to sustain a conviction; but it is sufficient if there is a control by the receiver over the goods. k § 1897 a. (1.) Reception against will of thief. When a second thief takes goods from a first thief without the latter's will, this is larceny. But if the reception is with the first thief's assent, this is receiving stolen goods. W. stole a watch from A., and while W. and L. were in custody together, W. told L. that he had "planted" the watch under a flag in the soot-cellar of L.'s house. After this, L. was discharged, and went to the flag, and took up the watch, and sent his wife to pawn. it. It was held, that if L. thus took the watch in consequence of W.'s information, W. telling L. in order that he might use the information by taking the watch, L. was indictable for this as a receiver of stolen goods; but that if this was an act done by L., in opposition to W., or against his will, it might be a question whether it would be a receiving. m § 1898. (m.) Receiving goods stolen in another state. - A person receiving, in Massachusetts, goods stolen in another state, is indictable at common law in Massachusetts for the receiving. n In England, another practice in this respect obtains. Thus a person had stolen goods in Guernsey and brought them to England, where he was taken and committed for trial: It was held, that Guernsey not being a part of the united kingdom, he could not be convicted of larceny for having them in his possession here, nor of receiving in England the goods so stolen in Guernsey.o (n.) What is evidence of reception in a county. A motion was j R. v. McAthey, L. & C. 250; 9 Cox C. C. 251. Ante, § 80. k State v. Scovel, 1 Rep. Con. 274; R. v. Miller, 6 Cox C. C. 353; R. v. Smith, 33 E. L. & Eq. 531; Dears. 496; 6 Cox, 554; State v. Turner, 19 Iowa, 144. See R. v. Hill, 2 C. & K. 978. made, on an indictment found in the city of New York, to dismiss the case or direct a verdict of acquittal, on the ground that it did not appear that the prisoners had received or had the property within the city and county of New York. It appeared that a large portion of the goods was found in a house apparently used for the purpose of storing and concealing goods, in Williamsburg, in another county, but another portion was found at the store of the defendants, in New York, and used there as samples. It further appeared that, at this store, one of the defendants offered to sell the witness the whole of the goods, and that the samples were brought in by another of the defendants after an absence of about fifteen minutes after he started for them. It was held, that the motion was properly overruled. p § 1898 a. (o.) Receiving goods embezzled or taken in statutory larcenies. When a taking is by statute made larceny, receiving goods so taken is indictable under the receiving statutes. By the same reasoning it is indictable to receive goods embezzled, and even were this not so by statute, it would be so at common law. 9 II. INDICTMENT. (r) § 1899. (a.) Rules as to pleading the name of the thief. — The indictment need not set forth the name of any person from whom the goods were received, 8 nor, according to the preponderance of authority, that they were received from some person or persons unknown. Such generally is the law under the statutes against p Wills v. People, 3 Parker C. R. (N. Y.) 473. some unknown person in Pennsyl vania. 9 R. v. Frampton, Dears. & Bell, (457) Same in South Carolina. 585, 813. (458) Same in Tennessee. r See Wharton's Precedents, as (459) Soliciting a servant to steal, and follows: (450) General frame of indictment. (452) Against receiver of stolen goods. from receiving stolen goods. s R. v. Wheeler, 7 C. & P. 170; R. v. Pulham, 9 C. & P. 280; State v. Murphy, 6 Ala. 845; People v. Caswell, 21 Wendell, 86; R. v. Thomas, 2 East P. C. 781; Com. v. Slate, 11 Gray, 60; State v. Smith, 37 Mo. 58. t In some jurisdictions, however, it is necessary to aver the name of the thief; State v. Beatty, Phil. (N. C.) L. 52; State v. Ives, 13 Iredell, 338; and hence it is safer to give this, or state the thief to be unknown. |