State v. Reeves
| Decision Date | 27 November 1978 |
| Docket Number | No. CR78-24,CR78-24 |
| Citation | 264 Ark. 622,574 S.W.2d 647 |
| Parties | STATE of Arkansas, Appellant, v. Glenda REEVES, Appellee. |
| Court | Arkansas Supreme Court |
Bill Clinton, Atty. Gen., by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for appellant.
William Martin Cromwell, Fort Smith, Matthew Horan, Fayetteville, for appellee.
This appeal was taken by the state from an order granting the motion of Glenda Reeves to dismiss a charge of theft by receiving. The trial court sustained appellee's contention that the prosecution was barred by the three year statute of limitations. We disagree and reverse the judgment.
The information charging Glenda Reeves with the crime was filed on 17 November 1976. It alleged that the crime was committed on 27 August 1976. The trial court held that, since Mrs. Reeves had possession of the automobile which was the subject of the charge since 1972, the three year statute of limitations had run, holding that the offense of theft by receiving is not a continuing offense. The information alleged that Mrs. Reeves received and retained this automobile. Since we do not agree with the trial judge that theft by receiving, as alleged here, is not a continuing offense, we reverse the order of dismissal.
It should be pointed out that the court's finding as to the date appellant first came into possession of the vehicle in question was based upon a stipulation by the state's attorney that: Rodney Dale Reeves first came into possession of the automobile in 1972; he and Glenda Reeves were husband and wife and were living together at the time; and they continued to live together until they were divorced in October or November, 1974, when the automobile was awarded to appellee through a property settlement incorporated into the divorce decree.
Prior to the adoption of the Arkansas Criminal Code, larceny, embezzlement, receiving stolen property and possession of stolen property were separate crimes, separately defined by separate statutes. There were several statutes covering the crime of receiving stolen property. See e. g., Ark.Stat.Ann. §§ 41-3912, 41-3934 41-3937 (Repl.1964). Possession of stolen property was defined by Ark.Stat.Ann. § 41-3938 (Repl.1964). All such crimes were consolidated into the crime of theft by the Criminal Code. See Ark.Stat.Ann. § 41-2202 (Repl.1977). The intention was to eliminate needless wrangling over the question whether particular conduct that is obviously criminal constitutes one offense rather than another. See commentary to § 41-2202.
The offenses of receiving stolen property and possession of stolen property were included under the broad general title of "(t)heft by receiving." This offense is defined by Ark.Stat.Ann. § 41-2206(1) (Repl.1977), in the following words:
A person commits the offense of theft by receiving if he Receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen. (Emphasis ours.)
The fact that the words "receives" and "retains" are alternatives clearly shows the legislative intent to incorporate the crimes of receiving stolen goods (see Ark.Stat.Ann. § 41-3934) and possession of stolen goods (see Ark.Stat.Ann. § 41-3938) into one offense and that either receiving or retaining stolen property constitutes the offense. The definition in Ark.Stat.Ann. § 41-2206(2) (Repl.1977) does not eliminate the mere knowing possession of stolen property as a form of theft by receiving. The commentary accompanying § 41-2206 shows clearly that such a result was not intended. The pertinent language of the commentary follows:
* * * Secondly, the person found in knowing possession of stolen items can be convicted without the necessity of proving whether he took the property himself or acquired it from the actual thief. There were formerly a number of statutes that treated the receiver of stolen property in the same fashion as the thief. See, E. g., prior law formerly found at Ark.Stat.Ann. § 41-3934 (Repl.1964) (receiving stolen goods); § 41-3937 (Repl.1964) (receiving stolen animals); § 41-3938 (Repl.1964) ().
Section 41-2206 adopts a definition of "receiving" that is broad enough to include not only the possession of stolen property, but also constructive possession, the acquisition of bare title to the property, or the extension of credit secured by the property.
This was part of the commentary before the General Assembly when the Code was adopted. See Commentary, p. 2, Vol. 4 Ark.Stat.Ann. (Repl.1977). While we are not bound by the interpretation of the Criminal Code set out in the commentary, it is very highly persuasive and should be adopted unless we are clearly convinced that it is erroneous or that it is contrary to the settled policy of this state, as declared in the opinions of this court. Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648; Rumph, Clerk v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916; Britt v. State, 261 Ark. 488, 549 S.W.2d 84.
The question before us then is: when does the statute of limitations begin to run on the crime of theft by receiving committed by retaining possession of stolen property? The information filed specified that the offense was charged as a class C felony and the value of the property was stated as in excess of $100, so the prosecution must have been commenced within three years after the commission of the offense. Ark.Stat.Ann. § 41-104(2)(b) (Repl.1977). For the purposes of § 41-104, an offense is committed either when every element of the offense occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant's complicity therein is terminated. Ark.Stat.Ann. § 41-104(5) (Repl.1977). Appellee's alleged course of conduct of retaining the automobile and her complicity in its retention had not been terminated at the date alleged in the information. By the very use of the word "retains," there was a clear intention of the General Assembly to make this aspect of the crime a continuing offense. The word "retain" means "to hold or continue to hold in possession or use; to continue to have, use, recognize, accept, etc.; to maintain in one's keeping; as to retain part of the money, one's position, one's faculties." Webster's New International Dictionary, 2d Ed. See also, Webster's Third New International Dictionary. Thus, retaining the automobile was a continuing course of conduct. There is nothing in the definition of "receiving" in Ark.Stat.Ann. § 41-2206(2) that leads to a contrary conclusion. 1 Here again, the commentary to § 41-104 makes the legislative intention quite clear by the following:
Crucial to the application of a criminal statute of limitations is the determination of when the offense is committed and when the prosecution is commenced. Subsections (5) and (6) answer these questions. The substance of subsection (5) is that the limitations period begins to run when the defendant could first be prosecuted for the offense. The subsection also states a special rule applicable to statutes prohibiting a continuing course of conduct. For example, if possession of an object is declared illegal, the elements of the offense are present from the moment defendant takes possession, but the limitations period does not begin to run until his possession ends.
We treated the subject of continuing offenses in Britt v. State, 261 Ark. 488, 549 S.W.2d 84. The offense here is clearly a continuing one under the definition used there. The definition we adopted was that a continuing offense is " . . . a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences." Retaining stolen property, as defined by the statute, fits that definition.
Appellee's argument that possession of stolen property is not a continuing course of conduct because it was not listed in examples given in that opinion is not persuasive. There is no indication in that opinion of an intention to list all crimes that are continuing offenses. We did not...
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State v. Lodermeier
...434, 413 A.2d 1094, 1098 (1980) (retaining stolen property is a continuing offense unlike receiving stolen property); State v. Reeves, 264 Ark. 622, 574 S.W.2d 647, 649, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1069 (1979). Other courts have held where a defendant acts purposef......
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U.S. v. Blizzard
...626 (N.D.1989). We are not persuaded and note, at least that an equal number reach the opposite conclusion. See Arkansas v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (en banc), cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1069 (1979); Hawaii v. Temple, 65 Haw. 261, 650 P.2d 1358 (1982);......
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People v. Lawson
...1981] ; Commonwealth v. Farrar, 271 Pa. Super. 434, 413 A.2d 1094 [Sup. Ct. Pennsylvania 1980] ; 99 N.Y.S.3d 606 State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 [Sup. Ct. Arkansas 1979] ; State v. Knutson, 81 Or. App 353, 725 P.2d 407 [Ct. App. Oregon 1986], but see State v. Nistler , 268 Or.......
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Reeves v. State
...a "continuing offense" has a point at which it terminates and the statute of limitations commences to run. See, e.g., State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1979) (statute of limitations for the continuing offense of theft by receiving does not begin to run until defendant's possess......