State v. Shahan

• Decision Date: 18 March 1975
• Citation: 335 A.2d 277
• Parties: STATE of Delaware v. Larry SHAHAN et al., Defendants.
• Court: Delaware Superior Court

Page 277

335 A.2d 277

STATE of Delaware v. Larry SHAHAN et al., Defendants.

Superior Court of Delaware, New Castle County.

March 18, 1975.

Jeffrey M. Weiner, former State Prosecutor, Wilmington, for the State of Delaware.

John A. Rich, Wilmington, for defendants Shahan, DeRose, and Downes.

Arlen B. Mekler, Wilmington, for defendant DeLorenzo.

Edward Z. Sobocinski, Wilmington, for defendant Newman.

Karl J. Parrish, Wilmington, for defendant Barczak.

Jay P. James, Wilmington, for defendants Valente and DiSabatino.

Joseph W. Benson, Wilmington, for defendants Domino, Galasso and Testa.

Joel D. Tenenbaum, Wilmington, for defendants Allmond, Hoilman and Brown.

David Snellenburg, Wilmington, for defendant Clifton.

Emmett J. Conte, Jr., Wilmington, for defendant Hemric.

Francis J. Trzuskowski, Wilmington, for defendant Estep.

G. Thomas Sandbach, Wilmington, for defendants Rosario and Anthony Fusco.

Joseph J. Farnan, Wilmington, for defendant George Brittingham.

James A. Walsh, Jr. Wilmington, for defendant Chickadel.

Dennis A. Reardon, Wilmington, for defendant Beal.

Daniel A. Durkin, Wilmington, for defendant Lamplugh.

Arthur Inden, Wilmington, for defendant Rappa.

Wilfred J. Smith, Jr., Wilmington, for defendants O'Hanlon and Smith.

OPINION ON DEFENDANTS' MOTIONS TO DISMISS

TAYLOR, Judge.

Each of the defendants has been indicted on a charge of receiving stolen goods in violation of Title II, Section 851 of the Delaware Code. Each indictment charges a defendant with having intentionally received property of the State of Delaware with intent to deprive the owner of it, believing that it was acquired under circumstances amounting to theft. Each defendant has moved to dismiss the indictment. In order to clarify the issue involved in the indictment, the Attorney General was permitted to file an affidavit setting forth clarifying facts underlying the charge. The facts are that the State acquired certain items of property and an undercover agent of the State undertook to sell them upon the representation that the items were stolen, although the items were not in fact stolen. The defendants purchased the items from the undercover agent under the above-stated circumstances. The items were not contraband items whose mere possession or ownership is outlawed.

Title II, Section 851 provides:

'A person is guilty of receiving stolen property if he intentionally receives, retains, or disposes of property of another person with intent to deprive the owner of it or to appropriate it, knowing that it has been acquired under circumstances amounting to theft, or believing that it has been so acquired.'

Under the statute, the State must charge and prove that the defendants (1) intentionally (2) received (3) property (4) of another person (5) with intent to deprive the owner of it, and (6) believing that it has been acquired under circumstances amounting to theft. Each indictment charges all of the enumerated elements and specifies the property that was received and that it was the property of the State of Delaware.

A requirement is that the defendant received 'property of another person'. The indictment specifies that it was the property of the State of Delaware. It must be assumed that this was alleged in compliance with the Delaware Criminal Code which contains rather precise definitions for various words and phrases as used in the Code. 11 Del.C. § 857 contains certain definitions which are made specifically applicable to Sections 841 through 856 of the Code. The definition for the phrase 'property of another person' is as follows:

'(5) 'Property of another person' includes property in which any person other than the defendant has an interest which the defendant is not privileged to infringe, regardless of the fact that the defendant also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.'

It is noted that this definition contemplates that in order to constitute property of another person there must be 'an interest which the defendant is not privileged to infringe'. Nowhere in the Code is this quoted phrase defined. A review of the context in which the defined phrase 'property of another person' is used is useful in assigning a meaning to the last quoted undefined phrase. The phrase 'property of another person' is used extensively throughout the Theft sections of the Code. See 11 Del.C. §§ 841, 842, 843, 844, and 851. Certain definitions found in § 857, which are applicable to the Theft sections also contain that phrase. 'Deprive' is defined as the withholding of property of another person. 'Appropriate' means the exercise of control over property of another person.

The definition of theft, found in 11 Del.C. § 841, is as follows:

'A person is guilty of theft when he takes, exercises control over or obtains property of another person intending to deprive him of it or appropriate it.'

Under § 841, theft is committed when one (1) takes, exercises control over or obtains (2) property of another person (3) intending to (4a) deprive him of it or (4b) appropriate it.

Two observations in the commentary on the Code provision of § 841 are helpful. The first is: 'The problem seems at first blush a simple one: We want to punish anyone who has unlawfully acquired property which doesn't belong to him and to which he has no right.' Later, discussing the applicability of the word 'deprive', the commentary states: 'Note that there is no requirement that the actor gain anything for himself or for another, but only that he withhold benefit from the person who is entitled to it.' Thus, inherent in the variations of the crime of theft is the concept that there be no outstanding property rights which defendant had not validly acquired by voluntary act of the rightful owner free of fraud on the part of the recipient.

A review of the evolutionary development of the concepts of theft and receiving stolen property is of use here. The commentary following 11 Del.C. § 841 points out that the basic forerunner of theft, the charge of larceny, consisted of taking and carrying away, without the consent of the owner, anything capable of being stolen, Without any claim of right and with intent, at the time of the taking, permanently to deprive the owner thereof. The common law contained a number of crimes involving variations of this concept. As pointed out in the comment, the underlying philosophy was to punish wrongful having of property which the defendant had no right to have. The related common law crime of receiving stolen property required that the goods be stolen, that the defendant have known them to be stolen and that he received them with intent to deprive the owner of the goods.

The Model Penal Code from which many of the provisions of the Delaware Criminal Code were drawn, undertook to combine under the heading of 'theft' the variations of larceny and embezzlement. The concise definition of the crime of theft appearing in 11 Del.C. § 841 is found in substantially similar language in § 206.1 of draft number one of the Model Penal Code. In that section is a definition of the phrase 'of another' when used in conjunction with the word 'property'. The definition refers to 'interest in the property which the actor is not privileged to infringe'. It is noted that the quoted phrase, with the substitution of the word 'actor' for the word 'defendant' is substantially the same as that used for the definition of 'property of another person' in 11 Del.C. § 857. The draftsman's comment concerning that section of the draft cites and quotes the Draft Wisconsin Criminal Code, which provided:

'Property of another means property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair . . .'.

The last phrase of the quoted definition from Wisconsin may be of use in defining the phrase 'not privileged to infringe'. ¹

In § 206.8 of that draft of the Model Penal Code, the refinement of the old crime of receiving stolen goods was given the title 'theft by receiving' and an element of the crime by receiving was the receiving of stolen moveable property. In the 1962 draft of the Model Penal Code, § 223.0 set forth various definitions including that of the phrase 'property of another', which used the same language found in 11 Del.C. § 857. The definition of theft found in § 223.2 ² and that in 11 Del.C. § 841 ³ have many similarities, including the phrase 'property of another'. Under the caption 'receiving stolen property' in § 223.6, ⁴ the language is substantially similar to that of 11 Del.C. § 851, with the exception that the Model Penal Code uses the phrase '(a) person is guilty of theft', while § 851 ⁵ uses the phrase '(a) person is guilty of receiving stolen property'. An examination of the commentaries following the sections fails to note any expressed intent on the part of the draftsman to depart from the concept both in the charge of theft and in the charge of receiving stolen property of the requirement that the subject matter be property that the defendant had no right to. I conclude that in their search for verbal simplification, the draftsman embodied in the phrase 'property of another', which frequently appears in these sections of the Code, the concept that the property or right be something to which the defendant had no right.

The problem of isolating the innocent receiver of stolen goods has always been a major concern in the definition of this crime. Historically, it was required to be proved that the recipient knew that the goods were stolen. The historic requirement of knowledge has been relaxed in modern times by providing for a presumption of knowledge, or, as in the Delaware Criminal Code, permitting the showing of a belief on the part of the receiver that the goods had been acquired by theft. It...