State v. Tindall

• Decision Date: 08 November 1948
• Docket Number: 16142.
• Citation: 50 S.E.2d 188,213 S.C. 484
• Parties: STATE v. TINDALL.
• Court: South Carolina Supreme Court

50 S.E.2d 188

213 S.C. 484

STATE v. TINDALL.

No. 16142.

Supreme Court of South Carolina

November 8, 1948

Samuel Want, of Darlington, and J. B. Gibson, of Dillon, for appellant.

Sidney S. Tison, Sol., of Bennettsville, for respondent.

FISHBURNE Justice.

The appellant, Sam Tindall, a white man, and one Preston Cade, a colored man, were tried together on an indictment containing two counts. In the first count the appellant was charged with the crime of receiving stolen goods on October 16, 1947, the property of Frank Ellerbe, knowing them to have been stolen. The second count charged appellant and Cade with grand larceny of the same goods. The subject matter of the alleged offense consisted of four bags of sample or loose cotton, each bag containing approximately twenty two pounds, with a total value of $22.40. A trial resulted in a verdict of guilty of grand larceny as to Cade and a verdict of guilty of receiving stolen goods of the value of more than twenty dollars knowing the goods to have been stolen, against the appellant. While the parties were tried together, Cade was not represented by counsel. The court overruled motions made by appellant for a directed verdict and for a new tiral, and sentenced him to a term of imprisonment in the penitentiary. He alone brings this appeal.

The serious question before us is, assuming that the evidence would have justified a verdict of guilt upon the count charging larceny of the four bags of cotton, are there sufficient facts upon which the jury might have found a caption and asportation prior to the reception of the cotton by Tindall, the appellant? In other words, was the crime of larceny complete before appellant received the stolen goods?

Our statute, Code, Section 1161, reads:

'In all cases * * * where any goods or chattels * * * of which larceny may be committed, shall have been feloniously taken or stolen by any person or persons, every person who shall buy or receive any such goods or chattels or other property knowing the same have been stolen, shall be held and deemed guilty of, and may be prosecuted for, a misdemeanor, and upon conviction thereof shall be punished by imprisonment although the principal felon or felons be not previously convicted, and whether he, she or they is, or are, amenable to justice or not * * *.'

The statute goes on to provide that when the property stolen shall be of less value than twenty dollars, the punishment shall not exceed imprisonment in the county jail for thirty days or a fine of not more than one hundred dollars.

In this state, the buying or receiving of stolen goods knowing them to have been stolen, is a separate substantive offense irrespective of whether the principal felon be previously convicted or be amenable to justice. State v. Hamilton, 172 S.C. 453, 174 S.E. 396. It is an accepted rule that one who commits larceny cannot be adjudged guilty of criminally receiving the property stolen. The difficulty comes in where the actual thief was aided by the accused in the commission of the crime.

The agrument is made by counsel for appellant that the testimony offered by the state tends to prove the appellant, Tindall, guilty of larceny, as to which he was acquitted, and not guilty of buying or receiving stolen property, of which offense he was convicted.

There can be no doubt under our cases that larceny and receiving stolen goods knowing them to have been stolen, are two separate and distinct offenses. State v. Hamilton, supra. Consequently, the appellant could not be found guilty of the offense of receiving stolen goods unless the property was stolen by someone other than himself, and bought or received by him from the thief. Of course, if the evidence offered by the state shows that appellant was the thief, then there can be no foundation for the verdict of the jury convicting him of buying or receiving stolen goods. There can be no guilty reception unless there be a prior stealing by another.

The question presented raises the inquiry: What facts in the present record justify a finding that the appellant was not a principal in the caption and asportation of the stolen cotton, but became a participant only after the larceny was consummated? The testimony introduced by the state may be summarized as follows: Frank Elerbe, the owner of the cotton alleged to have been stolen, operated a cotton warehouse in the town of Latta. Cade, who was convicted by the jury of the larceny of the cotton, had been employed by Elerbe in the warehouse to unload bales of cotton, line them up on the platform for sampling, sample and tag them. When these duties were performed, it was then Cade's duty to put the sample cotton in bags and place the bags in the warehouse. When sufficient loose cotton had thus been accumulated, it was Ellerbe's practice to have this sample cotton baled and sell it.

On October 16, 1947, there were seven sacks of sample cotton on the warehouse floor, which had been placed there by Cade, and its market value was approximately twenty eight cents per pound. About noon on the day in question, the appellant after selling three bales of cotton to Ellerbe's agent on the cotton platform across the railroad track from the warehouse, delivered the three bales at the warehouse. Appellant is a farmer and was accompanied by three of his tenants. Cade received the three bales and trucked and lined them up in the warehouse. Appellant, observing the seven sacks of cotton on the warehouse floor, asked Cade if the bags contained sample or remnant cotton. Code, who was in charge of the bags of cotton, replied that they belonged to his employer, Mr. Frank Ellerbe. Appellant then said, 'I will give you so much for some of it.' As a result of this conversation, appellant paid Cade the sum of $2.25 for four sacks of the cotton, which according to the testimony was...