Jackson v. State

Orth, J., delivered the opinion of the Court. THE OFFENSE OF RECEIVING STOLEN GOODS The Common Law To buy or receive stolen goods, knowing them to be stolen, was a misdemeanor at common law. 1 The receiver was indictable for misprision of the felony of larceny, because of his knowing the thief and neglecting to prosecute him, or of compounding the felony, if he agreed not to prosecute him, each a substantive misdemeanor. 2 But ³⁴⁰ the receiver was not an accessory to the theft because he received the goods only and not the felon. By statutes 3 W. & M., c. 9, § 4 and 5 Anne c. 31, § 5 a receiver was made an accessory after the fact. But Blackstone pointed out, “because the accessory cannot in general be tried, unless the principal or after the principal is convicted, the receivers by that means frequently eluded justice.

To remedy which, it is enacted, by statute 1 Anne, [Stat. 2] c. 9 [§ 2] and 5 Anne, c. 31, [§ 6] that such receivers may still be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted. * * * So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanor immediately, before the thief is taken, or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is proved by the same statutes, that he shall only make use of one, and not both, of these methods of punishment.” 4 Blackstone, Commentaries, 132-133. See State v. Magliano, 7 Md. App. 286 . The Maryland Law The inhabitants of Maryland are entitled to the common law of England and “to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity * * *.” Art. 5, Declaration of Rights, Constitution of Maryland.

In the preface to the Second Edition (1912) Alexander, British Statutes in Force in Maryland, Ward Baldwin Coe states: “The Statutes, 3 W. & M., c. 9, s. 4, 1 Anne Stat. 2 c. 9, s. 2 and 5 Anne c. 31, ss. 5, 6, dealing with the offense of receiving stolen goods, were omitted in the original edition. They were considered in State v. Hodges, 55 Md. 127 , but they were certainly not there held to be in force, ³⁴¹ and in any case the matter appears to be covered by our own statute on the subject. They have, therefore, been omitted in this edition also.” 3 Thus it appears that with respect to the offense of receiving stolen goods, the inhabitants of Maryland did not obtain the benefits of the English statutes designed to prevent receivers from eluding punishment although acting “to the ruin and in defiance of public justice.” But as Mr. Coe observed, by 1912 the matter was covered by our own statutes. On 6 January 1810 the General Assembly passed a comprehensive “act concerning crimes and punishments.” Chapter 138, Acts 1809 recognized that “it frequently happens, that men resigning themselves to the dominion of inordinate passion, commit great violations upon the lives, liberties or property, of others, which it is the great business of the laws to protect and secure, and experience evinces that the surest way of preventing the perpetration of crimes, and of reforming offenders, is by a mild and justly proportioned scale of punishments.” The act then designated crimes and punishments for offenses against the government; offenses included “under the general dominion of murder”; offenses “affecting the habitations, houses or vessels of individuals”; offenses affecting private property; offenses affecting “the public police” ; and offenses affecting public justice or public property.

It covered a multitude of miscellaneous matters in ³⁴² volving the administration of criminal justice. 4 Section VI dealing with offenses affecting private property provided by subsection 8: “Every person who shall be duly convicted of the crime of receiving any stolen money, goods or chattels, knowing the same to be stolen, or of the crime of receiving any bond, bill obligatory, or bill of exchange, promissory note for the payment of money, lottery ticket, bank note, paper bill of credit, certificate granted by or under the authority of this state or of the United States, or any of them, knowing the same to be stolen, shall restore such money, goods or chattels, or thing taken and received, to the owner or owners thereof, or make restitution to the value of the whole, or such part as shall not be restored, and shall undergo a confinement in the penitentiary for a period not less than three months nor more than ten years, to be dealt with as hereinafter directed; and such receiver may be prosecuted and punished, although the principal offender shall not have been convicted.” In Kearney v. State, 48 Md. 16 (1877) the Court said, at 23, that the part of the statute defining and punishing the crime of receiving any bond and similar items designated “created new offenses unknown to the common law. 2 East’s P. C. 597.” However in State v. Hodges, 55 Md. 127 (1880) the Court, answering the question whether in this State the offense of receiving stolen goods was a felony or a misdemeanor said, at 135: “All the books agree that such an offense at common law is but a misdemeanor punishable by fine and imprisonment.” And it found that ³⁴³ the offense in this State has always been considered as a misdemeanor, citing Kearney. 5 Acts 1892, Ch. 546 (Code 1888, Art. 27, § 234) increased the minimum sentence to 18 months and added the proviso that where the things received amount to less than $50 in value the judge passing sentence shall have discretionary power to sentence the person convicted to imprisonment in jail or the House of Correction instead of the Penitentiary. Acts 1902, Ch. 18 removed the minimum sentence provision and the proviso of Ch. 546, Acts 1892, providing simply that upon conviction sentence of not more than 10 years could be imposed to be served in the penitentiary, jail or the house of correction. Acts 1918, Ch. 424 (Code 1914, Art. 27, § 423) added that the receiver may be prosecuted and punished “although such receiver shall have received such money, goods or chattels or things from a person other than the person by whom such money, goods, chattels or things shall have been stolen.” Acts Sp. Sess. 1936, Ch. 106 (Code 1924 Ed., Art. 27, §§ 470 and 470 A) for the first time determined the severity of the punishment according to the value of the things received.

It provided for a maximum sentence of 10 years when the value was $25 or upwards, § 470, and for a fine of not more than $50 or imprisonment for not more than 18 months, or both, when the value was under $25, § 470 A. A two year period of limitations was placed on the prosecution of the offense of receiving things under the value of $25. But unlike the offense proscribed when the value of the things received was $25 or upwards, there was no provision when the value was less than $25 that the receiver may be prosecuted and punished although the principal offender shall not have been convicted and although the things were received from a ³⁴⁴ person other than the person by whom the things were stolen. However, this was added by Acts 1945, Ch. 635 (Code 1939 Ed., Art. 27, § 549) which also specifically designated the offense of receiving things under the value of $25 as a misdemeanor. In the 1951 edition of the Code, the crime of receiving stolen things of the value of $25 or upwards appeared in Art. 27, § 562 and the crime of receiving stolen things under the value of $25 in § 563.

Chapter 427, Acts 1953 amended § 563. It changed the value of the things received to under $100 and increased the fine to $200 and the term of imprisonment to 3 years. The failure to amend § 562 to conform with the amendment of § 563 was remedied by Ch. 21, Acts 1954 which raised the value of things received under § 562 to $100 or upwards. By Acts 1966, Ch. 628, receiving things of the value of $100 or upwards was designated a felony (Code 1957 Ed., 1965 Supplement, Art. 27, § 466) . 6 It was said in State v. Hodges, supra, in the face of the statutes then in effect (1888), “In this State, the Code merely prescribes the punishment for receiving stolen goods, and does not in any manner change the nature or character of the offense itself.” In Henze v. State, 154 Md. 332 (1928) the Court found that the legislative enactments to that date had created no new offense, holding, at 335, “The offense still remains a common law offense.” And in 1963 when Fletcher v. State, 231 Md. 190 , was decided, the Court was of the opinion that “our statutes, Code (1957 and 1962 Supp.), Art. 27, Secs. 466 and 467, do not define the offense of receiving stolen goods, but merely prescribe the punishment therefor * * At 192.

Since the only material amendment to the statutes as in effect at the time Fletcher was decided was to make the receiving of things to the value of $100 and upwards a felony, we think the opinion expressed in Fletcher pre ³⁴⁵ vails. It follows, therefore, that in this State there is only-one crime of receiving stolen property. The elements of it, recognized by the Maryland cases are: (1) the property must be received; (2) it must at the time of its receipt, be stolen property; (3) the receiver must have guilty knowledge that it is stolen property; (4) his intent in receiving it must be fraudulent. See Fletcher v. State, supra; Dixon v. State, 1 Md. App. 623 .

So in this jurisdiction receiving stolen goods is a separate and distinct substantive crime and not merely accessorial. While legislative enactments have not created a new offense or defined receiving stolen goods they have: a) designated the property which is the subject of the offense — any stolen money, goods, or chattels or any bond, bill obligatory, bill of exchange, promissory note for the payment of money, bank note, paper bill of credit, or certificate granted by or under the authority of this State, or the United States, or any of them; b) provided that the receiver may be prosecuted and punished, although the principal offender or offenders shall not have been convicted, and although the receiver shall have received the property from a person other than the person by whom such property shall have been stolen; c) classified the crime as a felony if the value of the property received is to the value of §100 or upwards and as a misdemeanor if the value is under §100 ; d) prescribed a punishment more severe if the value of the property is to the value of $100 or upwards — confinement for not more than ³⁴⁶ 10 years — than if the value is under $100— a fine of $200 or imprisonment for not more than 3 years or both; e) provided that all actions or prosecutions for receiving property under the value of $100 shall be commenced within two years after the commission of said offense. 7 THE INSTANT CASE Willie Preston Jackson, Jr. was charged with two offenses of receiving stolen goods. Each charge was in the ■formula that he unlawfully received certain lately feloniously stolen property of a named person, well knowing the property to have been stolen. Both offenses were alleged to have been committed on 26 May 1969.

In indictment 4004 the property was specified as “One Solid State Morse stereo, dark brown in color, Serial 3781, of the value of four hundred dollars current money; Two hundred 33% LP records, of the value of seven hundred dollars current money.” The owner was alleged to be Robert Cooper. In indictment 4005 the property was specified as “Fifty dollars current money; One portable television, of the value of One hundred fifty-nine dollars current money; One record player, of the value of Twenty-nine dollars and ninety-five cents' current money.” The ■owner was alleged to be Evelyn Taylor. Of the property ■specified in indictment 4004 the evidence adduced at the ■court trial in the Criminal Court of Baltimore connected appellant with only several of the records belonging to ■Cooper at a total value of $7. Of the property specified in indictment 4005 the evidence connected appellant with the television set valued at $149 and a record player valued ■at $11.

But they were shown to be the property of Alvin Taylor. Evelyn Taylor was not mentioned or accounted for in any way. The court rendered a verdict of guilty of the 4th count, charging receiving stolen goods under each in ³⁴⁷ dictment, finding as to 4004 that the goods received were under the value of $100 and as to 4005 that the goods received were over the value of $100. The docket entries as to 4004 read: “Guilty 4th count (under $100.00),” and as to 4005: “Guilty 4th count (over $100.00).” The court imposed a sentence of 3 years on each conviction, the sentence under 4005 to run consecutively with that under 4004.

In his brief appellant asserts that the 4th count of indictment 4004 charged that he “did feloniously receive stolen goods.” He then points out that he was found guilty of receiving stolen goods under the value of $100. The assertion is factually incorrect. It was alleged in 4004 that he “unlawfully did then and there have and receive”; by Maryland Rule 712 b “[t]he word ‘unlawfully’ shall cover both a felony and a misdemeanor and it shall not be necessary to use the word ‘feloniously’ in charging an offense.” In any event he draws no conclusion from his statement and observation and presents no argument relating to it. See Rule 1031 c 4.

In argument before us it was suggested that a conviction of receiving stolen goods under the value of $100 on a charge wherein it was alleged that designated goods were over the value of $100 was improper. This point was not tried and decided below. Rule 1085. And see Rule 1046 f.

In any event we find the conviction valid. We have found that there is only one offense of receiving stolen goods and not two separate crimes, one of receiving goods to the value of $100 and upwards and another of receiving goods under the value of $100. It is not a question of a greater or lesser crime for there is only one crime. That the goods proved to be received were of a value of under $100 simply authorized a maximum term of imprisonment of 3 years rather than 10 years and made the appellant a misdemeanant rather than a felon, important