State v. Botta

• Decision Date: 14 July 1971
• Docket Number: No. 70-272,70-272
• Citation: 271 N.E.2d 776,27 Ohio St.2d 196
• Parties: , 56 O.O.2d 119 The STATE of Ohio, Appellant, v. BOTTA, Appellee.
• Court: Ohio Supreme Court

Page 196

27 Ohio St.2d 196

271 N.E.2d 776, 56 O.O.2d 119

The STATE of Ohio, Appellant, v. BOTTA, Appellee.

No. 70-272.

Supreme Court of Ohio.

July 14, 1971.

Syllabus by the Court

1. 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 is not applicable where the defendant is guilty of the theft only as an aider, abettor or procurer (R.C. § 1.17), but is guilty of receiving or concealing such property after its theft as a principal offender. (Smith v. State, 59 Ohio St. 350, 52 N.E. 826, followed.)

2. Although, as to the principal offender who steals a motor vehicle, any acts of receiving or concealing the same motor vehicle knowing it to have been stolen are considered merged in the crime of auto theft itself, so as to preclude separate sentences for a violation of R.C. § 4549.04 (auto theft) and R.C. § 2907.30 (receiving or concealing stolen property), it is not error to permit a jury to return verdicts of guilty as to both offenses, if otherwise warranted by the evidence, and for the court to then impose only the sentence provided for auto theft and to dismiss the charge of receiving or concealing stolen property.

Defendant-appellee was indicted on two counts, the first count charging that he did unlawfully steal a 1967 Cadillac automobile in violation of R.C. § 4549.04, and the second count charging that he did unlawfully receive or conceal certain stolen property, knowing it to have been stolen, consisting of the same 1967 Cadillac automobile, in violation of R.C. § 2907.30.

The trial court charged the jury that defendant could be found guilty or not guilty of any one or both of such counts. The jury found the defendant guilty on both counts. Thereafter, the trial court, concluding that a verdict of guilty on the second count was 'inconsistent with the verdict of guilty on count number one,' struck from the record the conviction as to receiving or concealing stolen property and sentenced defendant under the conviction for auto theft.

The Court of Appeals reversed and remanded for a new trial upon the basis that defendant could not be guilty of both auto theft and receiving or concealing the same stolen automobile; that 'it was the defendant's right to have the jury make the selection under a proper charge, whether he was guilty of one or the other or none of the allegations in the indictment.'

The cause is before this court pursuant to the allownce of appellant's motion for leave to appeal.

James V. Barbuto, Pros. Atty., and Charles E. Lowrey, Akron, for appellant.

Marvin A. Koblentz, Cleveland, for appellee.

LEACH, Justice.

The evidence herein clearly is sufficient to support the conclusion that defendant, either as an aider, abettor or procurer (R.C. § 1.17) or as a principal offender, stole the 1967 Cadillac from its owner, and thereafter, by selling it to another person by the use of a forged certificate of title caused it to be received and concealed. The single issue presented herein is whether the trial court erred to the prejudice of the defendant when it failed to instruct the jury that defendant could be found guilty as to only one of the two counts of the indictment, but where, after the jury had returned their verdict of guilty as to both counts of the indictment, the court sentenced the defendant only under the first count (auto theft).

In considering this question we believe that there is a clear-cut distinction between the right of the jury to pass on the factual issue of guilt and the right of the court to impose sentence. The former involves basically considerations of fact; the latter involves basically considerations of law. The same considerations which would preclude imposition of separate sentences do not necessarily preclude separate factual determinations of guilt.

In this case, both lower courts held and all counsel assume that defendant could not be sentenced for both offenses. Both appellant and appellee seem to assume that a 'thief' can never be guilty of the separate offense of receiving or concealing the same property which he has 'stolen.' This, however, is not necessarily true where the defendant is not guilty of the actual caption and asportation and thus is not the principal thief, but is a 'thief' only by virtue of being an aider, abettor or procurer in the theft.

The prevailing American rule appears to be that an accused may be convicted of criminally receiving or concealing stolen property where he took no part in the actual caption and asportation but participated only as an accessory before or after the fact even though made a principal in the larceny artificially, by statute. 45 American Jurisprudence 393; 76 C.J.S. Receiving Stolen Goods § 15, p. 20; 136 A.L.R. 1087, 1095.

Ohio has distinguished between the principal and a confederate in this respect in Smith v. State (1898), 59 Ohio St. 350, 52 N.E. 826, the second paragraph of the syllabus therein reading:

'A prosecution under Section 6858 of the Revised Statutes, for receiving and concealing stolen property, can not be maintained against the thief, but may be against a confederate, who received and concealed the property stolen.'

The reasoning underlying this holding in Smith is explained in the opinion of Judge Williams, 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 6856, 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; * * *. We see no reason, however, why a confederate of the thief may not be guilty of both receiving and concealing the property which the latter has stolen, or of either; * * *. Many cases are found which declare that rule * * *. The reason of the rule is that the receiving of the property is subsequent to the larceny in fact, and not a part of it. Hence the rule is inapplicable where the receiving or concealment of the property is embraced in its caption and asportation. * * *'

We conclude therefore that 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 is not applicable where the defendant is guilty of the theft only as an aider, abettor or procurer (R.C. § 1.17), but is guilty of receiving or concealing such property after its theft as a principal offender.

Applying that rule of law to the facts herein, it would appear that the evidence would probably warrant a conclusion that, although as to the theft itself defendant was an aider, abettor or procurer, his telephone conversations with the purchaser of the stolen automobile after its theft and his delivery of the false certificate of title to the place of business of the purchaser would constitute personal acts in violation of R.C. § 2907.30, such as to make him a principal offender. In such enent, any error by the trial judge in sentencing under the first count of the indictment and dismissing the second count would redound in defendant's favor and to the prejudice of the state.

However, since a detailed analysis of the evidence in such respect is not primarily for this court, in the first instance, we shall assume in the balance of this opinion that the basis of defendant's guilt, both as to the auto theft and as to the receiving or concealing stolen property, was only as an aider, abettor or procurer. In such event, his position would be exactly the same as if he were the principal offender.

Accepting the premise that, as a matter of law, the principal offender could not be found guilty and sentenced for both theft and receiving or concealing the same stolen property, does this compel the conclusion that the jury must be accorded the right to pick and choose between the two offenses? In our opinion, it does not.

In this connection, it must be borne in mind that in such a situation we are not dealing with the fundamental fact-finding processes inherent in the jury concept. So far as the facts are concerned in this type of case, the property has been received in the sense of 'taking into one's hand or one's possession' (a common meaning of the word); the property is being concealed; and the property obviously is known to have been stolen (the defendant himself having stolen it). Were it not for the existence of the separate crime of larceny, there could be no question as to the right of the jury to conclude guilt as to receiving or concealing stolen property under such...