City of Maumee v. Geiger

• Decision Date: 10 March 1976
• Docket Number: No. 75-519,75-519
• Citation: 344 N.E.2d 133,45 Ohio St.2d 238,74 O.O.2d 380
• Parties: , 74 O.O.2d 380 CITY OF MAUMEE, Appellee, v. GEIGER et al., Appellants.
• Court: Ohio Supreme Court

Page 238

45 Ohio St.2d 238

344 N.E.2d 133, 74 O.O.2d 380

CITY OF MAUMEE, Appellee, v. GEIGER et al., Appellants.

No. 75-519.

Supreme Court of Ohio.

March 10, 1976.

The investigation culminated in April 1974, when some unmarked bags were found at the residence of appellant James E. Geiger and some marked bags were found at the residences of appellant John M. Weis and of Geiger's parents.

On April 26, 1974, complaints were filed in the Maumee Municipal Court charging that Weis and Geiger 'did receive, retain, or dispose of property of another, to wit: white plastic refuse bags owned by the city of Maumee knowing or having reasonable cause to believe it had been obtained through commission of a theft offense in violation of Section 134.17 Maumee Municipal Code.'

Four days later, the police chief and the city solicitor met with Weis and Geiger and their attorney. Geiger returned 3,300 bags to the city officials; and he and Weis executed written statements that each had removed bags from the street division complex, that such bags were used or stored at their homes or given away, but not sold, and that they wished to make restitution.

Trial was had on July 17 and 18, 1974. After the prosecution called six witnesses and introduced in evidence the statements of Weis and Geiger, defense counsel '* * * moved for a judgment of acquittal on the grounds that a thief of property may not be convicted of receiving same property as stolen property. The court overruled the defendants' motion.

'At the conclusion of the court's definition of the offense in the instructions to the jury, defendants moved the court to instruct the jury that if they found from the evidence that either or both of the defendants had in fact stolen the white plastic garbage bags then they must accordingly find the defendants not guilty of the charge of receiving, retaining or disposing of stolen property. The court overruled defendants' motion and rejected the requested instruction.' Statement of evidence and proceedings submitted pursuant to App.R. 9(C).

The Court of Appeals, with one judge dissenting, affirmed the trial court's judgment of conviction of both defendants, and this court granted a motion to certify the record.

William S. McCready, City Prosecutor, Toledo, for appellee.

Arthur F. James, Toledo, for appellants.

PER CURIAM.

The question presented is whether a person may properly be tried and convicted for receiving stolen property after he admits the actual theft of that same property.

Section 134.17 of the Maumee Municipal Code and R.C. 2913.51 use the same language to identify the crime of receiving stolen property: 'No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe it has been obtained through commission of a theft offense. * * *'

Appellants admit their roles as thieves in this cause, and rely upon the following cases for their proposition that they are not amenable to prosecution as receivers of stolen property.

In his dissenting opinion in Milanovich v. United States (1961), 365 U.S. 551, 558, 81 S.Ct. 728, 732, 5 L.Ed.2d 773, Justice Frankfurther stated:

'It is hornbook law that a thief cannot be charged with committing two offenses-that is, stealing and receiving the goods he has stolen. E. g., Cartwright v. United States, 5 Cir., 146 F.2d 133; State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and Procedure, Section 576; 136 A.L.R. 1087. And this is so for the commonsensical, if not obbious, reason that a man who takes property does not at the same time give himself the property he has taken. In short, taking and receiving, as a contemporaneous-indeed a coincidental-phenomenon, constitute one transaction in life and, therefore, not two transactions in law. * * *'

The cited annotation, supra, entitled 'May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property,' reads, at page 1088, in part:

'It is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen.'

That proposition entered Ohio law in Smith v. State (1898), 59 Ohio St. 350, 52 N.E. 826, with a defense contention, at page 351: '* * * that one and the same person cannot be guilty of both the larceny and the buying, receiving and concealing the same goods or property.' The court stated, at page 361, 52 N.E. at page 828:

'The crime of larceny is defined, and its punishment prescribed, by Section 6856, of the Revised Statutes. And, by Section 6858, the buying, receiving, and concealing of stolen property is made a distinctive and substantive offense, separate from that of the larceny of the property, though it is punished in the same way. The offense at common law was limited to the buying or receiving of stolen property; and the thief could not be convicted of that offense, because he could neither be the buyer or receiver of the property from himself, and therefore did not come within the description. The change made by our statute consists in the addition of concealment of stolen property, with guilty knowledge, to the criminal acts of buying and receiving it. But the thief cannot be convicted of that offense, because there is present in the larceny a concealment of the property stolen, with intent to deprive the owner of it, which, whether of long or short duration constitutes a part of that crime, and not the separate substantive one under Section 6858; and this is so, though he was assisted by another in the commission of the larceny. The purpose of that section was to provide for cases not included in the one against larceny, and to punish those who, when a larceny has been committed, receives or conceals the fruits of that crime; and to include the thief within that class would subject him to punishment twice or more for a single criminal transaction.' (Emphasis added.)

State v. Botta (1971), 27 Ohio St.2d 196, 199, 271 N.E.2d 776, 779, recognized '* * * the general rule that a thief may not be guilty of the separate offense of receiving or concealing the same property which he has stolen * * *.'

After considering the foregoing cases in its appraisal of appellants' theory that the thief cannot be the receiver, the Court of Appeals stated:

'Basically, all the cases cited with regard to the issue of whether or not a thief can be convicted of receiving, retaining, or disposing of property concerned the propriety of cumulative sentences for separately charged offenses arising out of the same act. * * *

'* * *

'In the case sub judice, the...