Territory v. Graves

• Decision Date: 14 June 1912
• Citation: 125 P. 604,17 N.M. 241,1912 -NMSC- 027
• Parties: TERRITORY v. GRAVES.
• Court: New Mexico Supreme Court

125 P. 604

17 N.M. 241, 1912 -NMSC- 027

TERRITORY v. GRAVES.

Supreme Court of New Mexico

June 14, 1912

Syllabus by the Court.

To sustain the prosecution of a prisoner for receiving goods knowing them to be stolen, four things must be proved:

(1) That the goods or other things were previously stolen by some other person.

(2) That the accused bought or received them from another person or aided in the concealing of them.

(3) That, at the time he so bought or received them, or aided in concealing them, he knew they had been stolen.

(4) That he so bought or received them, or aided in concealing them, malo animo, or with a dishonest intent.

The felonious receiving of stolen property, knowing the same to have been stolen, is a substantive offense, and distinct from larceny.

One cannot at the same time be a principal in a larceny, and in a legal sense a receiver of the stolen property.

Appeal from District Court, Chaves County; before Chief Justice William H. Pope.

Richard C. Graves was convicted of receiving stolen goods, and appeals. Reversed and remanded.

W. W Gatewood and R. L. Graves, both of Roswell, for appellant.

Frank W. Clancy, Atty. Gen., for the Territory.

HANNA J. (after stating the facts as above).

In the presentation of this case a number of errors are assigned with respect to giving and refusing instructions, and admission of testimony; but, as we have concluded to base our opinion upon the merits of the case, it will not be necessary to pass upon these assignments of error.

The question of larceny having been eliminated from the case by the verdict of the jury, we will turn our attention to the second count of the indictment upon which the verdict of the jury in this case rests. This count is based upon section 1117 of the Compiled Laws of 1897, which is as follows "Every person who shall buy, receive or aid in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall be punished by imprisonment in the territorial prison or county jail not more than four years nor less than three months, or by fine not exceeding five hundred dollars."

Our attention has been called to similarity of this statute and the Virginia statute, and the further fact that the Supreme Court of Appeals of Virginia, in the case of Hey v Commonwealth, 73 Va. 946-951 (34 Am. Rep. 799), held that to convict an offender against this statute four things must be proved, viz.: "(1) That the goods or other things were previously stolen by some other person. (2) That the accused bought or received them...