State v. Coroles

• Decision Date: 12 April 1929
• Docket Number: 4628
• Citation: 277 P. 203,74 Utah 94
• Court: Utah Supreme Court
• Parties: STATE v. COROLES

277 P. 203

74 Utah 94

STATE v. COROLES

No. 4628

Supreme Court of Utah

April 12, 1929

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Angel Coroles was convicted of having knowingly received stolen property, and he appeals.

REVERSED AND REMANDED.

W. H Reeder, Jr., and Woolley & Holther, all of Ogden, for appellant.

George P. Parker, Atty, Gen., for the State.

FOLLAND J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

From a conviction of having knowingly received stolen property in violation of Comp. Laws Utah 1917, § 8297, defendant appeals.

The personal property alleged to have been received by the defendant was several cases of cigarettes which had been stolen by a colored janitor named Garrett from the commissary of the Oregon Short Line Railroad Company at Ogden, Utah. The conviction rests upon the evidence of the self-confessed thief. His testimony shows that he procured the cigarettes from the commissary on the night of December 28, 1926, at the request of appellant and delivered them to appellant personally at the latter's place of business in Ogden, and that he received therefor a postdated check which he afterwards cashed. He also testified to other transactions of a similar nature to the one in question, from which it is shown that appellant knew where the cigarettes came from and how they were procured.

The question presented on this appeal is whether or not the thief is an accomplice of the receiver of the stolen property within the rule requiring that the testimony of an accomplice be corroborated. The question arises on exceptions taken by appellant to the refusal of the trial court to submit to the jury by proper instructions the question of an accomplice's testimony and its corroboration.

This court has not heretofore passed on this precise question. The cases from other jurisdictions are not in accord as to whether or not the thief is an accomplice of one who knowingly receives stolen goods. Not only is there a division among the authorities as to the legal status of the parties mentioned, but there is also confusion in the reasoning on the subject. We shall not set out a list of the cases. Neither shall we catalogue the states on the two sides of this problem. This is done in the ample notes found in Ann. Cas. 1912B, 1211, 9 A. L. R. 1397, and 32 A. L. R. 449.

Cases are cited from New York and from Oklahoma on both sides of this proposition. The early Oklahoma cases held that the thief and the receiver of stolen goods are not accomplices. The later cases hold they are. However, a distinction is made which explains the apparent change in policy. This distinction is stated by the Oklahoma court in Brownell v. State, 33 Okla. Crim. 323, 244 P. 65, thus:

"Following the general rule of law, it has been several times held by this court that a thief who steals property is not an accomplice of the person who receives it from him, knowing it to have been stolen, but that the thief and the receiver of the stolen goods are independent criminals. Mayes v. State, 11 Okla. Crim. 61, 142 P. 1049; Pringle v. State (Okl. Cr. App.) 239 P. 932. There is, however, an exception to the rule announced to the effect that where the thief and the receiver of the stolen property conspire together to steal property, with a prearranged plan for the one who actually commits the theft to deliver it to the other at an agreed time and place, and pursuant to such plan does steal property and deliver it to the receiver, the receiver is an accomplice of the thief and the thief is an accomplice of the receiver in the commission of the offense of receiving stolen property. Motsenbocker v. State 233 P. 487; Logan v. State 214 P. 944."

A similar view is taken by the Supreme Court of Montana in State v. Keithley, 271 P. 449.

If we adopt the rule announced in the foregoing cases, it would be applicable to the instant case and control the decision. By the testimony of the thief, appellant participated in advance in the larceny of the property, at least to the extent that he ordered the cigarettes and requested the witness to obtain them, well knowing that they would be obtained by theft. The question we are called upon to decide is, however, Was the witness an accessory to the crime with which appellant is charged? That is, knowingly receiving stolen property; not that the appellant was an accomplice with the witness in the crime of larceny. We think it does not necessarily follow that because the parties are concerned in the crime of larceny they are thereby accomplices in a wholly separate and distinct crime, that of receiving property knowing it to have been stolen. The true rule rests on other grounds.

Our statute has provided that accomplices must be corroborated; Comp. Laws Utah 1917, § 8992, being as follows:

"A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof."

We have no statutory definition of "accomplice." The statute does, however, define who are principals in the commission of any crime, as follows:

"Sec. 7919. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, * * * are principals in any crime so committed."

The word "accomplice" is defined in 1 Wharton's Crim. Ev. (10th Ed.) § 440, p. 921, thus:

"An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. The co-operation in the crime must be real, not merely apparent."

That an accessory after the fact is not an accomplice has been decided by this court. People v. Chadwick, 7 Utah 134, 25 P. 737. We have also stated the true reason for the enactment of the statute requiring corroboration of an accomplice in State v. Wade, 66 Utah 267, 241 P. 838. In that case Mr. Justice Cherry, speaking for the court, said:

"The rule of the statute that a conviction cannot be had upon the uncorroborated testimony of an accomplice is based upon the consideration that such testimony comes from a tainted source, and is not entitled to the same credence as the evidence of a witness free from guilt. The essential characteristic of an accomplice is therefore criminal guilt."

In the same case, this court quotes with approval the rule stated in People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A. (N. S.) 704, as follows:

"This, then, is the true test and rule: if in any crime the participation of an individual has been criminally corrupt he is an accomplice. If it has not been criminally corrupt he is not an accomplice."

The New York Court of Appeals recently and for the first time passed upon this question. That state has a statute similar to ours in its definition of who are principals. The court held that the thief and receiver are accomplices. People v. Kupperschmidt, 237 N.Y.463, 143 N.E. 256, 32 A. L. R. 447. Reasons for which we think are sound are given for this decision as follows:

"The test is whether the alleged accomplice can be indicted for the offense. Sometimes as in prosecutions for abortion, the coparticipant is regarded as the victim rather than the perpetrator of the crime (Dunn v. People, 29 N.Y.523, 527, 86 Am. Dec. 319), or, as in the illegal sale of intoxicating liquors, it is said that the person making the sale is the only one declared by the law to be criminal ( People v. Smith, 28 Hun 626, affirmed in 92 N.Y.665). But under the Penal Law, § 2, one who aids or abets another in the commission of a crime is a principal, whether he has been previously guilty of an independent crime or not. The receiver cannot take with guilty knowledge unless aided therein by the act of the thief in delivering.

"If the proper test is not whether the alleged accomplice is indictable for the same offense, but whether he has taken a guilty part in the commission of the crime (McLaughlin, J., in People v. Hyde, 156 A.D. 618, 624, 141 N.Y.S. 1089), the same result is reached. Is the act of the thief in delivering the stolen goods to the receiver, under such circumstances as convey the knowledge that they were stolen, an innocent act? It is said that one cannot receive goods which he has himself stolen. Literally, but not in a legal sense, this may be true; but he is none the less 'concerned in the commission of the crime' of receiving, and therefore a principal. Penal Law, § 2. We are dealing with the legislative definition of guilty participation, not with the common meaning of words.

"In perhaps a majority of the jurisdictions which have passed upon the question, the rule is that the thief is not an accomplice of the receiver within the rule...