State v. Hodges

• Decision Date: 16 December 1880
• Citation: 55 Md. 127
• Parties: STATE OF MARYLAND v. JOHN HODGES.
• Court: Maryland Court of Appeals

55 Md. 127

STATE OF MARYLAND v. JOHN HODGES.

Court of Appeals of Maryland

December 16, 1880

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J., for the appellant, and submitted on brief for the appellee.

Charles J. M. Gwinn, Attorney-General, for the plaintiff in error.

It is settled in this State that when an indictment is demurred to and the demurrer is sustained and the indictment quashed, the State is entitled to have the record removed by petition as upon a writ of error into this Court. State vs Buchanan, 5 H. & J., 329, 330; State vs Boyle, 25 Md., 519.

At common law he who aided a thief, by knowingly receiving him after such thief had committed a larceny, became an accessory, after the fact, to the felony. But it was not a felony, at common law, to receive, knowingly, from the thief the property which he had stolen. 1 Hawk. P. C., Book 1, ch. 19, sec. 8. That offence, at common law, was a misdemeanor only. Ibid. 1 Hale P. C., 619, 620; 2 East's Crown Law, sec. 142; 2 Russ. on Crimes, 9 th Am. Ed., 541; 3 Chitty's Criminal Law, 5 th Am. Ed., 950, (a.) But by 3 W. & M., ch. 9, sec. 4, any person buying, or receiving any stolen goods or chattels, knowing them to have been stolen, was made an accessory after the fact, to the felony. 6 Evans' Statute, 14, 49, Z Z; 3 Chitty's Criminal Law, 951; 1 Hawk. P. C. ch. 19, sec. 8. After this statute was enacted, no indictment for the offence as a misdemeanor could be sustained. 3 Chitty's Criminal Law, 951. And, unless the principal felon was convicted, the receiver, as an accessory after the fact, could not be convicted. 3 Chitty's Criminal Law, 951; 2 Hawk. P. C., Book 2, ch. 29, sec. 11; 2 East's Crown Law, 744, 745.

This difficulty was remedied in England by 1 Ann, Statute 2, ch. 9, sec. 2, which provided that, if the principal felon could not be taken, it should be lawful to prosecute such offence as a misdemeanor, although such principal felon was not convicted. 6 Evans' Statute, 50.

The Statute of 5 Ann, ch. 31, secs. 5 and 6, declared that the receiving of stolen goods, knowing them to have been stolen, and the receiving or harboring of the thieves themselves, made the persons so offending accessories after the fact; but it is provided that if the principal felon could not be taken, so as to be prosecuted and convicted, the receiver might be prosecuted for a misdemeanor. 6 Evans' Statute, 50; 1 Hawk. P. C., ch. 19, sec. 8; 3 Chitty's Criminal Law, 951.

Under the statutes 3 W. & M., ch. 9, sec. 4, and 5 Ann., ch. 31, secs. 5 and 6, it was held by the twelve Judges, that a receiver of stolen goods might be prosecuted and convicted of the offence as a misdemeanor, although the principal felon was known, unless it appeared from the finding of the jury, that the principal felon was out of custody by collusion, and could have been taken and convicted when the indictment against the receiver was found. Wilkes' Case, 1 Leach's Crown Law, 103, 104; 3 Chitty's Criminal Law, 951. A like ruling was in effect made in Thomas' Case, 2 East's Crown Law, 781.

If therefore it be true, Kilty's Rep. on Statutes, 179, 180, that the Statutes of 3 W. & M., ch. 9, sec. 4, 1 Ann., ch. 9, sec. 2, and 5 Ann., ch. 31, secs. 5 and 6, ever extended to the province of Maryland, the indictment in this case was good under the Statute of 5 Ann., ch. 31, secs. 5 and 6, as for a misdemeanor; because it does not appear in the record that the principal felon was known, or that he was out of custody by collusion, and could have been convicted when this indictment was found.

It was unquestionably good under the Act of 1809, ch. 138, sec. 6, sub-clause 8, as codified in 1 Code, Article 30, section 163, because it is plain from the words of this subclause that its purpose was to disregard the different definitions given to the offence by the statutes in question--to refer to the common law offence by proper descriptive words--and to affix a proper punishment to such common law offence. It is because this purpose was plain, that the offence has always been dealt with in this State since 1809 as a misdemeanor. Kearney's Case, 46 Md., 16.

There was no need to set forth in the indictment any intent on the part of the defendant in error, to appropriate to his own use the goods which he received, knowing them to have been stolen. The offence defined by the Code, Article 30, section 163, is "the crime of receiving any stolen money, goods or chattels, knowing the same to be stolen." If the defendant in error received the property knowing that it had been stolen, for the mere purpose of concealment, without deriving any profit from the transaction, he was just as much a guilty receiver of the property as if he had knowingly purchased it from the thief. Rex vs. Richardson, 6 C. & P., 335, cited in 2 Russ. on Crimes, 9 th Am. Ed., 554; Rex vs. Davis, 6 C. & P., 177; 25 E. C. L. Rep., 341, 343; Rex vs. Jervis, Ibid, 330; 2 East P. C., 765.

The gist of the offence of receiving stolen goods is the guilty knowledge of the offender. 2 Russ. on Crimes, 9 th Am. Ed., 561; 1 Wharton's Criminal Law, 8 th Ed., 1880, sec. 983. That averment is correctly made in the indictment. If the allowance of the demurrer can stand upon no other grounds, than those upon which it appears to have been placed by the lower Court, its judgment must necessarily be reversed.

But a demurrer to an indictment makes the examination of the whole of that indictment necessary; and it is my duty to consider another question which is presented by the indictment, but does not appear to have been noticed below, in order that the proper form of an indictment, in cases where persons are charged with receiving stolen goods, may be definitely settled.

The question of real importance is, whether this indictment is defective, because of the omission of any averment that the person charged-- unlawfully "did receive and have, &c."

As the offence under consideration has been made in general a felony in England, by the Statutes of 3 W. & M., ch. 9, sec. 4; 5 Ann., ch. 31, secs. 5, 7 and 8; George 4, ch. 27, sec. 54, and 24 and 25 Vict., ch. 96, sec. 91, there are necessarily few English precedents accessible of indictments for misdemeanors, with which the indictment in this case can be contrasted.

It is my duty to bring to the attention of the Court the only English prosecutions, capable of being drawn into precedents which I have observed. These were certain excepted cases, which could be prosecuted as I have shown, as misdemeanors under the Statutes of 3 W. & M., ch. 9, sec. 4, and 5 Ann., ch. 31, sec. 5; Wilkes' Case, 1 Leach Cr. Law, 103, and Morris' Case, Ibid, 468, are examples of such prosecutions. The Statute of 22 George 3, ch. 58, afterwards repealed by 7 and 8 George 4, ch. 27, sec. 1, would appear to have converted into misdemeanors large classes of receivings of stolen goods. Haslam's Case, 1 Leach Cr. Law, 418, is an example of a prosecution under this statute. The reports of the cases referred to do not give the particular words of the indictments. In 2 Chitty's Crim. Law, 5 th Am. Ed., 998, (a,) there is, however, a form of an indictment, under the Statute of 22 George 3, ch. 58, taken from another book of precedents. In it is the averment that the act charged was done "unlawfully;" and the further averment certainly unnecessary, that it was done "for the sake of wicked gain."

The question to be determined is, whether the word "unlawfully" in this precedent, was in truth a necessary word. It is proper to have recourse to precedents in this country; for the offence is dealt with under the Federal law, and in several States as a misdemeanor, as it is in this State.

Under the Act of Congress of March 3rd, 1825, section 8, 4 U.S. Stat. at Large, 116, Revised Statutes, U.S., section 5357, it was provided that if any person upon the high seas, or in any waters within the admiralty, or maritime jurisdiction of the United States, and out of the jurisdiction of a particular State, should receive any property which might be the subject of larceny, and which had been taken or stolen from any other person, "knowing the same to have been taken or stolen," he should be deemed guilty of a misdemeanor.

It appears that in indictments in the Federal Courts no averment is made that the stolen goods were "unlawfully" received. Wharton's Precedents of Indict., 2 nd Ed., 421. Indeed, in the general precedent, which is given by the author as a proper form in all cases of receiving stolen goods--section 450--the word """unlawfully" is wholly omitted.

It is plain that the pleader, in drawing the indictment in question in this case, adopted the general form prescribed by Wharton in the section 450 which I have referred to. Is the form given by Wharton correct or erroneous?

This inquiry obliges me to state in a simple and compact form, the elementary rules governing the framing of indictments. "An indictment is nothing else but a plain, brief and certain narrative of an offence committed by any person, and of those necessary circumstances that concur to ascertain the fact and its nature." 2 Hale P. C., margin page 169.

When the offence charged was not an offence at common law, but was made an offence by statute, it is sufficient to set out the circumstances contained in the statutory definition of the offence, and to bring the accused within its material descriptive words. 1 Starkie Criminal Pleading, 178.

When the offence charged is an offence at common law, it is necessary only to set out the proper words, which express directly, or by necessary inference, the circumstances necessary to constitute the alleged common law offence. King vs. Horne, Cowp., 679, Lord MANSFIELD, 688 ASTON, J. King vs. Stevens...