McCoy v. State

• Citation: 170 N.E.2d 43,241 Ind. 104
• Decision Date: 15 November 1960
• Docket Number: No. 29850,29850
• Parties: Margaret Annabelle McCOY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 43

170 N.E.2d 43

241 Ind. 104

Margaret Annabelle McCOY, Appellant, v. STATE of Indiana, Appellee.

No. 29850.

Supreme Court of Indiana.

Nov. 15, 1960.

John A. Kesler, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Patrick D. Sullivan, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The appellant was charged, tried and convicted of receiving stolen goods under Burns' § 10-3017, 1956 Repl., which reads as follows:

'Receiving stolen goods.--Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, taken by robbers, embezzled, or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled, or obtained by false pretense, shall, if the goods be of the value of twenty-five dollars [$25.00] or more, on conviction, suffer the punishment prescribed for grand larceny, and if the goods be of the value of less than twenty-five dollars [$25.00] shall suffer the punishment prescribed for petit larceny.'

The evidence showed that the defendant's eleven year old son, Max Allsup, and another boy nine years old, Hubert Shipley, Jr., broke into the F. W. Woolworth store and stole radio, record player and other merchandise and took it to defendant's home one night. Evidence further shows that she knew the merchandise had been stolen by her son and the Shipley boy at the time. That same night they made two further trips to the store and returned with more merchandise. The Shipley boy stated that the defendant took certain 'jewelry and stuff' up to her room at the time the merchandise was brought to her home. When a policeman came to her door that night she volunteered no information and she later concealed part of the merchandise and took some of it to the home of her parents.

Appellant first claims that by reason of the relationship of mother and son, she is immune from prosecution on the charge of receiving stolen goods from her son because of the following two statutes:

'Burns' Indiana Statutes Annotated, Section 9-103. 'Accessory after the fact.--Every person not standing in the relation of husband or wife, parent or child, to any person guilty of any felony, who shall, after the commission of such crime, harbor, conceal or assist such offender, with intent that he shall escape from detection, capture, arrest or punishment, shall be deemed an accessory after the fact, and may be charged, indicted, tried, convicted and punished, though the principal be neither charged, indicted, tried nor convicted; and, on such conviction, he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal. But in such charge the offense committed by the principal offender shall be stated, and it shall therein be charged that the accessory did so harbor, conceal or assist such offender, with intent that he should escape detection, arrest, capture or punishment. [Acts 1905, ch. 169, § 226, p. 584; 1935, ch. 124, § 1, p. 465.]'

and

Burns' Indiana Statutes Annotated, Section 10-1004. 'Concealing felons.--Whoever, not being husband or wife, parent or child of any person guilty of a felony, knowing him to be such, harbors or conceals such felon, shall, on conviction, be imprisoned in the state prison for any determinate period of not less than one year nor more than ten years. [Acts 1905, ch. 169, § 482, p. 584; 1935, ch. 124, § 2, p. 465.]'

The first statute is applicable only to cases where adefendant is charged as an accessory after the fact. The defenant here is not charged as an accessory after the fact, but as a principal in the offense of receiving stolen property under Burns' § 10-3017, 1956 Repl. The statute (Burns' § 9-103) is not applicable here. As to Burns' § 10-1004, we point out likewise that the defendant is not here charged with concealing a felon and therefore that statute is not applicable.

Appellant further urges upon us that at common law a mother was protected in the family relationship to the extent that she should not be compelled to take a position antagonistic to the interests of her children. Quite an emotional plea is made to that effect. Regardless of how receptive such a plea may be to one's emotions, we must recognize that the law imposes upon the parents the duty of discipline rather than the aiding and abetting in the concealment of crimes of their children. In fact, the law holds parents liable for contributing to the delinquency of their children. Decency and self-respect require a rejection of a plea which would cultivate and promote delinquency and discourage good morals. The appellant cites the case of Caldwell v. State, 1922, 193 Ind. 237, 137 N.E. 179, which involved a conviction of a wife for receiving stolen property from her husband. The conviction was reversed on the presence that the offense took place in the presence of the husband under whose domination she was at the time. Under such circumstances it is the duty of the State to prove that there was no coercion on the part of the wife at the time of the commission of the alleged crime. It has been said:

'At common law, a married woman is capable of, and responsible for, a crime committed by her, just as if unmarried, except as to acts done in the presence of her husband. If she commits a criminal act in his presence, it is presumed that she did it under constraint by him, and she is therefore excused and he is presumably punishable except in case of murder or treason. The presumption is a very slight one and may be rebutted by very slight circumstances. In view of a married woman's status at the present time, the presumption should not and generally does not exist.' 14 Am.Jur., Criminal Law, § 62, pp. 811, 812.

In this case there is no evidence and, of course, it cannot be presumed that the mother was under the domination of and coerced by her young son at the time she received the stolen property. The plea of the appellant upon this proposition is rejected.

The appellant contends that since the affidavit alleges that the property was 'feloniously' stolen by two minors age eleven and nine, respectively, it charges the minors committed a felony of grand larceny, requiring imprisonment in the state prison. Burns' § 9-101, 1956 Repl. We are not inclined to give this contention serious consideration for the reason first, that such word may be considered surplusage and secondly, the statute defining the receiving of stolen property merely stated property 'which has been stolen, taken by robbers, embezzled, or obtained by false pretense'. The word 'stolen' has quite a broad meaning and would apply to property unlawfully taken by minors subject to the juvenile law. Burns' § 9-3103 and Burns' § 9-3204.

Burns' Section 9-1613 further provides that in any prosecution for the offense of receiving stolen property 'it shall not be necessary on the trial thereof to prove that the person who stole such property had been convicted.'

Appellant next complains of certain admissions by Max Allsup, the son, on the ground that the confessions of a thief are not admissible against the one receiving stolen property. With the general principle we are in agreement. However, the evidence shows here that the statements were made by the son in the presence of the appellant, his mother, to a police officer, the witness, when he came to the appellant's home and asked to come in and talk to the son. These statements made in the presence of the appellant are admissible. Dye v. State, 1891, 130 Ind. 87, 29 N.E. 771; 8 I.L.E. Criminal Law § 195, p. 292.

Likewise, the evidence as to the transfer of part of the stolen property from Max Allsup to the police officers, even though not in the presence of the appellant, are acts and facts which are admissible, although any statements or admissions at the time would not be.

Where, in a confession, a witness gives information as to where property may be found, although the confession may not be, for certain reasons admissible, the finding of the objects of property by a police officer or witness certainly are facts which are admissible, if material or relevant to the issues involved. Watts v. State, 1950, 229 Ind. 80, 95 N.E.2d 570, 571; Jackson, etc. v. State, 1958, 238 Ind. 365, 151 N.E.2d 141; Vorhis v. State, 1953, 233 Ind. 105, 116 N.E.2d 233.

Under assignments 50 to 60, both inclusive, under the supplemental motion for a new trial, the appellant complains of certain testimony of police officers, among them, that a BB gun 'was returned to Sayre and Company' and that certain businesses had been 'burglarized'. Upon examination we find that the objections made thereto were not sufficiently specific or were not those urged during trial; therefore, there was no prejudicial error committed. Richeson, alias etc. v. State, 1953, 233 Ind. 1, 116 N.E.2d 101; Sekularac v. State, 1933, 205 Ind. 98, 185 N.E. 898; Wimsatt v. State, 1957, 236 Ind. 286, 139 N.E.2d 903.

Appellant next complains that Hubert Shipley, Jr., was permitted to testify without the appellant being permitted to inquire as to whether or not he consented thereto as an accomplice.

Burns' § 9-1303 provides:

'* * * The following persons are competent witnesses:

* * *

* * *

'Third. Accomplices, when they consent to testify.'

At common law the receiving of stolen goods, Knowing them to be stolen, was a distinct offense, the receiver not being an accessory to the theft. Ross v. State, 1825, 1 Blackf. 390.

This rule still prevails as stated in Wertheimer v. State, 1929, 201 Ind. 572, at page 577, 169 N.E. 40, at page 42, 68 A.L.R. 178:

'In this state receiving or concealing stolen goods, knowing them to have been stolen, is an independent, substantive offense and not merely an accessorial one. The particular thing denounced by the statute is the receiving of stolen goods knowingly. The name of the thief, or other person from whom the accused received the goods, is not necessary as identifying matter, and for...