Smith v. State

• Decision Date: 13 December 1898
• Citation: 59 Ohio St. 350,52 N.E. 826
• Parties: SMITH v. STATE.
• Court: Ohio Supreme Court

52 N.E. 826

59 Ohio St. 350

SMITH v. STATE.

Supreme Court of Ohio.

December 13, 1898

Error to circuit court, Erie county.

May Smith was convicted of the crime of concealing stolen property exceeding $35 in value, and sentenced to imprisonment in the penitentiary for a term of years. That judgment having been affirmed by the circuit court, a petition in error, on leave granted, was filed in this court. The facts relevant to the questions upon which the case is reported are stated in the opinion. Reversed.

Spear C. J., and Minshall, J., dissenting.

Syllabus by the Court

1. An indictment which charges that the accused, on a specified day, received and concealed different chattels, which had been stolen from different owners, is not bad for duplicity.

2. A prosecution under section 6858 of the Revised Statutes, for receiving and concealing stolen property, cannot be maintained against the thief, but may be against a confederate, who received and concealed the property stolen.

3. It is not necessary to a conviction under that section that the property be received from the thief.

4. Receiving or concealing different articles of property at different times, and on separate occasions, constitute distinct offenses, and cannot be prosecuted as one crime though all the property be thereafter found in the possession of the defendant at one time and place; and, in such case, a conviction for a felony, based on the aggregate value of all the property, cannot be sustained, when the value of that received or concealed on each of such occasions is less than $35.

5. This rule is unaffected by the fact that the property was stolen by the defendant and another jointly, and received or concealed in pursuance of an agreement to so commit the offenses. The only effect of such an agreement is to make each party to it responsible for the crimes committed by the other in pursuance of it, whether present at their commission or not.

6. Sections 5200 and 5201 of the Revised Statutes have no application in criminal cases, and upon the issue raised by the plea of not guilty the court is not required to direct the jury to return special findings.

S. A Court, for plaintiff in error.

John Ray, Pros. Atty., for the State.

WILLIAMS, J.

The indictment on which the plaintiff in error was put upon trial contained two counts, one of which charged her, jointly with her husband, J. C. Smith, Maggie Gaw, and Sarah Leuzler, with the larceny of the property in question, and the other count charged that she, with the persons named, did unlawfully and fraudulently buy, receive, and conceal the property, knowing that it had been stolen. The plaintiff in error, on her demand, was given a separate trial, in the course of which the state abandoned the count for larceny, and the case then proceeded on the other count. The property embraced in that count consisted of dry goods, shoes, jewelry, and other articles of merchandise which belonged to, and had been stolen from, different merchants in the city of Sandusky. That count describes the various articles of stolen property, alleges their value, names the respective owners, and charges that all of the property was bought, received, and concealed by the parties accused on the 17th day of May, 1897. In the count for the larceny, there is the same description of the property and allegations of ownership and value, and the larceny is laid on the same day. A motion to quash each count for duplicity was overruled, and that action of the court is made a ground of error here; the claim being that, as the property of different owners was included in each count, there were as many offenses charged as there were owners of property.

While it is true that the stealing from different owners, at different times, however slight the interval, constitute several offenses, a larceny of several articles may be committed by the same act, so as to constitute but one offense, though they are the property of different owners. State v. Hennessey, 23 Ohio St. 339. And so with respect to receiving or concealing stolen property. Many articles stolen at different times from several persons may be received and concealed by the same act, and then there is but one offense. A motion to quash lies only when the objection is apparent on the face of the record. Rev. St. § 7249. And as the indictment in the one count avers that all the property described was stolen, and in the other received and concealed, by the accused parties on the same day, it may be treated as charging but one criminal act in each count. It does not affirmatively appear that more than one offense is charged in either count, and the motion was therefore properly overruled.

The evidence tended to prove that some of the goods had been stolen from the stores of the several owners in Sandusky before the day laid in the indictment, and were found on that day in the house where the plaintiff in error resided with her husband, which was in the country, some miles distant from Sandusky. It further tended to prove that the plaintiff in error had been in the habit of visiting these stores where she carried on a species of theft commonly known as ‘shoplifting,’ and on some occasions was accompanied by her co-defendant Leuzler, who engaged in a like mode of stealing, and the two, when together, acted in concert. We have discovered nothing in the evidence to show that any goods stolen by either were delivered to the other. On the day named in the indictment, the plaintiff in error and Mrs. Leuzler went together to Sandusky, where they visited several stores, from some of which each stole different articles. They were suspected, accused of the thefts, confessed their guilt, and put under arrest. The property that day stolen was recovered, and an officer sent to search the houses where the women resided, which were in the same neighborhood, but some distance apart. A considerable quantity of goods of various kinds was found in each house, which the evidence tended to show had been stolen from the different owners named in the indictment, and from their respective places of business, in the manner already stated. All of these goods, together with those stolen on the 17th day of May, 1897, were included in each count of the indictment, and their aggregate value laid at $240. The court directed the jury, in case they should return a verdict of guilty, to find the value of only so much of the property described in the indictment as had been found in the house of the plaintiff in error, and of that stolen on the 17th day of May, 1897, and to exclude all that had been found in Leuzler's house; and also to return a special verdict showing the value of each item included in the general verdict, and the name of its owner. That was done, the value returned in the general verdict being $65, and the special verdict showing the value of each item of the property and the name of its owner. The value of no single article amounts to $35, and the aggregate value of all the items of but one owner equals that sum.

Upon the conclusion of the testimony, the defendant, by her counsel, presented the following written instruction, which the court was requested to give in charge to the jury ‘You must first find from the evidence that a crime has been committed,-that the goods alleged in the indictment, or some of them, were stolen from the owner or owners; and in so finding the jury must take into consideration all of the evidence submitted; and, having found that a larceny was committed, you will find from the testimony that some one other than the defendant here on trial stole the goods, before you can find that she can be guilty of buying, receiving, and concealing the same; for, if she alone shall have stolen the goods, she cannot be guilty, as charged under this indictment, of buying, receiving, and concealing the same, for the statute comprehends that the buying or receiving, and the subsequent concealing, shall have been from some one who is the thief, and not a receiving from the thief by the thief; that statute contemplates at least two persons in such transactions.’ This instruction was refused, and an exception duly entered. Several other instructions on the same subject were requested, all of which, like this one, made the receiving of the stolen, property from the thief essential to a conviction. At the request of the state's attorney, the jury were instructed as follows: ‘If you find from the evidence, beyond a reasonable doubt, that the goods, or a part of them, were stolen, and that the...