State v. Hagan
| Decision Date | 16 February 1929 |
| Docket Number | 5212 |
| Citation | 47 Idaho 315,274 P. 628 |
| Parties | STATE, Respondent, v. FLOYD HAGAN, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-RECEIVING STOLEN GOODS-INFORMATION-SUFFICIENCY OF-SEARCHES AND SEIZURES-CONSENT OF HOUSEHOLDER.
1. Information under C. S., sec. 8438, providing that every person who for his own gain or to prevent owner from again possessing his property buys or receives any personal property knowing the same to have been stolen is punishable therefor, held not to charge more than one offense, it not being inconceivable or unreasonable that one who buys or receives property with the intent of his own gain may have at same time and as part of transaction an intent to prevent owner from again possessing it.
2. Search of barn on mother's premises with her consent held not to have violated any constitutional right of privacy or possession of the son, whose purported possession was in subservience and submission to the power, authority ownership and possession of his mother.
3. Proof in prosecution under C. S., sec. 8438, for receiving stolen property, held not at variance with allegations of information, though establishing that a part of property was directly delivered to defendant outside of building from which it was taken and removed, since proof of receipt of any or less than all of property charged will support conviction.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.
Defendant was convicted of receiving stolen property, and he appeals. Affirmed.
Affirmed.
Fisher & Coffin, for Appellant.
There are four essential elements of the crime of receiving stolen property, and all four of them must be alleged in order to state an offense against the laws of Idaho. (State v Janks, 26 Idaho 567, 144 P. 779.)
The essential condition upon which several things disjunctively forbidden in one clause of the statute may be conjunctively united in one count of an information is that they are of such a nature as not to be inconsistent with each other and that they may be considered as parts of the same transaction. (United States v. Thomas, 69 F. 588, 590; State v. Laundy, 103 Ore. 443, 204 P. 958, 206 P. 290; State v. Brown, 36 Idaho 272, 211 P. 60; State v. Leavitt, 87 Me. 72, 32 A. 787, 788.)
The common law of England as it came down to us recognized only one crime known as receiving stolen property, namely, the receipt of stolen property from the thief, knowing the same to have been stolen, and with the intent to assist the thief in depriving the owner of his property.
If a man, for his own gain, buys or receives stolen property, knowing the same to have been stolen, the crime committed is not the same crime as that of receiving stolen property, knowing the same to have been stolen, with intent to prevent the owner from again possessing his property. (People v. Tilley, 135 Cal. 61, 67 P. 42.)
The test to be applied to a search and seizure to determine whether it be unreasonable, is to ascertain whether the property seized, if offered in evidence, would amount to compelling the defendant to give evidence against himself. (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.)
An uninvited search is unlawful unless made under a valid warrant. (United States v. Rembert, 284 F. 996, 1004.)
If the place searched by officers without a valid warrant be in the possession, or under the control, of the defendant, the search is unreasonable and the defendant may object thereto. (Buchanan v. Commonwealth, 210 Ky. 364, 275 S.W. 878; Fabri v. United States, 24 F.2d 185; Hays v. State (Okla. Cr.), 261 P. 232.)
One who jointly with another takes part initially and feloniously in the caption and asportation of property may not be convicted of receiving the stolen property. (Adams v. State, 60 Fla. 1, Ann. Cas. 1912B, 1209, 53 So. 451.)
If one burglar stands outside a window while another plunders the house and hands out the goods to him, he surely cannot be indicted as a receiver. (Regina v. Perkins, 5 Cox C. C. 554; State v. Honig, 9 Mo.App. 298.)
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
When an offense may be committed in one or more of several ways, or by one or more means, as specified in the statute the indictment may, in a single count, charge the commission of the offense, in any or all of the ways specified by the statute. (State v. Brown, 36 Idaho 272, 211 P. 60; State v. Mounse (Mo. App.), 279 S.W. 199.)
An information charging a person with knowingly receiving stolen property for his own gain or to prevent the owner from again possessing it, charges but one offense. (People v. Ribolsi, 89 Cal. 492, 26 P. 1082; Ex Parte Flaherty, 64 Cal.App. 210, 221 P. 390; Territory v. Neatherlin, 13 N.M. 491, 85 P. 1044; People v. Rice, 73 Cal. 220, 14 P. 851; 1 Bishop, New Crim. Proc., sec. 436; 2 Bishop, New Crim. Proc., sec. 585.)
Consent of the owner of the premises searched amounts to a waiver of any claim that the search is illegal. (Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; United States v. Gouled, 253 F. 242; United States v. Williams, 200 F. 538, 118 C. C. A. 632.)
The right to object to an unlawful search is a right personal to the owner of the premises searched, and cannot be claimed by any other person. (State v. Dunn, 44 Idaho 636, 258 P. 553.)
In a prosecution for receiving stolen property, there is no fatal variance even though the evidence shows to some extent that the defendant participated in the larceny. (Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Anthony v. State, 44 Fla. 1, 32 So. 818; Fisk v. State (Tex.), 42 S.W. 985; Egan v. State, 97 Neb. 731, 151 N.W. 237.)
This is an appeal from a judgment on conviction of violation of C. S., sec. 8438, which provides:
"Every person who, for his own gain, or to prevent the owner from again possessing his property, buys or receives any personal property, knowing the same to have been stolen, is punishable. . . ."
The defendant, having by demurrer and otherwise in the trial contended that the information charges more than one offense, assigns as error adverse rulings thereon. The material portion of the information alleged the larceny of the property involved, and that thereafter "the defendant . . . . did . . . . knowingly, wilfully, unlawfully and feloniously and for his own gain, and to prevent the owner . . . . from again possessing his said personal property, buy and receive . . . . the said personal property described as follows: . . . . the said defendant then and there well knowing the same to be stolen."
Appellant contends that C. S., sec. 8438, in defining a crime as buying or receiving "for his own gain, or to prevent the owner from again possessing his property," has defined two separate crimes, and that the information, in charging these in the conjunctive, charges two offenses. In State v. Brown, 36 Idaho 272, 211 P. 60, it is said:
"'. . . . When a statute mentions several acts disjunctively and prescribes that each act shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively, as a single offense. But the rule does not apply when repugnancy results from charging the acts conjunctively. . . .'"
Counsel concedes this rule, but contends that the two intents, to gain for himself and to prevent the owner from again possessing his property, cannot by any possibility be involved in a single transaction, and thus, being repugnant the information violates the rule of State v. Brown. Counsel argues upon rules and decisions perhaps applicable to the asserted common-law crime of receiving stolen property, and analogies therefrom. We cannot concur in this reasoning. The statute creates a statutory crime differing from that of the common law of receiving stolen property. To follow appellant's reasoning would require a holding that existence of one of these intents negatives and denies the possible existence of the other in the same transaction as a matter of law. It is not inconceivable, in fact not unreasonable, that one who buys or receives property, with the intent of his own gain, may have, at the same time and as part of the transaction, an intent to prevent the owner from again possessing it, in fact that his scheme and intent to gain may of necessity include an intent to prevent...
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