Jackson v. State

• Decision Date: 04 November 1970
• Docket Number: No. 9,9
• Parties: Willie Preston JACKSON, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 337

10 Md.App. 337

270 A.2d 322

Willie Preston JACKSON, Jr. v. STATE of Maryland.

No. 9.

Court of Special Appeals of Maryland.

Nov. 4, 1970.

Certiorari Denied Jan. 13, 1971.

[270 A.2d 323] Jack E. Richards, Baltimore, for appellant.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Joseph Harlan, Asst. State's Atty., for Baltimore City respectively, on brief for appellee.

Argued before MURPHY, C. J., and ORTH and THOMPSON, JJ.

ORTH, Judge.

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

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, 255 A.2d 470.

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 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.

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

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 involving '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 herein after directed; and such receiver may be prosecuted and punished, although the principal offender shall not have been convicted.'

                the administration of criminal justice.  4  Section VI dealing with offenses affecting private property provided by subsection 8
                

In Kearney v. State, 48 Md. 16 at 23 (1877) the Court said 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 at 135 (1880) the Court, answering the question whether in this State the offense of receiving stolen goods was a felony or a misdemeanor said: 'All the books agree that such an offense at common law is but a misdemeanor punishable by fine and imprisonment.' And it found that 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.

the offense in this State has always been considered as a misdemeanor, citing Kearney. ⁵

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 470A) 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, § 470A. 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 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.

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.

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 at 335, 140 A. 218 at 220 (1928) the Court found that the legislative enactments to that date had created no new offense, holding, 'The offense still remains a common-law offense.' And in 1963 when Fletcher v. State, 231 Md. 190, 189 A.2d 641, 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 therefore * * *.' At 192, 189 A.2d at 643. 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 prevails.

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...