State v. Hodges

Robinson, J., delivered the opinion of the Court. The defendant in error was indicted for receiving stolen goods, knowing them to he stolen. A demurrer was filed to the indictment, and the Court below sustained the demurrer and quashed the indictment. A writ of error it is true will not lie until after final judgment, hut the judgment in quashing an indictment is a final judgment.

There can he no further proceedings upon the indictment, and although the prisoner may he held to hail to await the further action of the grand jury, yet so far as the pending indictment is concerned, he is entitled to his discharge. ¹³⁵ There can he no question therefore, as to the right of the State to remove the record by petition as upon writ of error into this Court. Rules of the Court of Appeals, 29 Md. It appears by the petition, that the demurrer was sustained upon the ground that the indictment did not charge a felonious receiving of the stolen goods, or any intent on the part of the receiver to appropriate the goods to himself. The first question then is, whether the offence of receiving stolen goods, is in this State a felony or a misdemeanor P All the hooks agree that such an offence at common law is hut a misdemeanor punishable by fine and imprisonment. 1 Hale’s P. C., 619; 2 East P. C., 142; 4 Black., 38 ; 3 Chitty’s Criminal Law, 950. By the Statute 3 W. & M., ch. 9, sec. 4, any person buying or receiving any stolen goods or chattels, knowing them to have been stolen, was made an accessory after the fact.

After the enactment of this statute, no indictment for the offence as a misdemeanor would lie, because the misdemeanor was merged in the felony. 3 Chitty’s Crim. Law, 951. And unless the principal felon was convicted, the receiver as an accessory after the fact could not he convicted. 2 Hawk, P. C., Book 2, ch. 29, sec. 11; 2 East’s Crown Law, 144. If then the principal felon escaped or was kept out of the way, the receiver went unpunished.

To remedy this, 1 Ann., Statute 2, ch. 9, sec. 2, provided that if the principal felon could not he taken, it should he lawful to prosecute such offence as a misdemeanor, although such principal felon had not been convicted. And it was held in Wilkes’ Case, 1 Leach’s Crown Law, 103, by the twelve Judges, that a receiver of stolen goods might he prosecuted and convicted of the offence as a misdemeanor, although the principal felon was known, unless it appeared from the finding of the jury, that the principal was out of custody by collusion, and could have ¹³⁶ been taken and convicted when the indictment against the receiver was found. If then it be true, that the Statutes of 3 W. & M., ch. 9, sec. 4; 1 Ann., ch. 9, sec. 2, and 5 Ann., ch. 31, secs. 5, 6, extended to the province of Maryland, as stated in Kitty’s Rep, on Statutes, 179, 180, the indictment in this case charging the offence as a misdemeanor was a good indictment, because it does not appear in the record that the principal felon was out of. .'custody by collusion, and could have been convicted when' this indictment was found. The offence in this State has always been considered as a misdemeanor.

Kearney’s Case, 46 Md., 16 . It was not necessary therefore to allege in the indictment, that the property in question was feloniously received by the defendant in error. In regard to the other question whether it was necessary to charge in the indictment, that the traverser received the stolen goods for the purpose of converting them to his own use, the authorities are all one way. If they were received with an honest intent, that is to say, for the purpose of keeping them for the owner, such a