even then, if the bankrupt meant bona fide to dispute the bankruptcy, that would prevent the taking from being a felony.(w)

It was agreed that a bankrupt's wife could not be examined on the part of the prosecution, on an indictment against the bankrupt for offences against the 5 Geo. 2, c. 30.(x)

*CHAPTER THE TWENTY-EIGHTH.

OF RECEIVING STOLEN GOODS.

[*542

RECEIVERS of stolen goods were at common law punishable only as for a misdemeanor, even after the thief had been convicted of felony in stealing them;(a) but by the provisions of several statutes, now repealed, such receivers were made accessories after the fact to the felony of the thief, in cases where the thief had been convicted, or was amenable to justice; and were made liable to be prosecuted for a misdemeanor in cases where the thief had not been convicted, and whether he was amenable to justice or not.1

By the 24 & 25 Vict. c. 96, s. 91, "whosoever shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, extorting, obtaining, embezzling, or otherwise disposing whereof shall amount to a felony, either at common law or by virtue of this Act, knowing the same to have been feloniously stolen, taken, extorted, obtained, embezzled, or disposed of, shall be guilty of felouy, and may be indicted and convicted either as an accessory after the fact or for a substantive felony, and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and every such receiver, howsoever convicted, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping: Provided, that no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence."(b)

Sec. 92. "In any indictment containing a charge of feloniously stealing any property it shall be lawful to add a count or several counts for feloniously receiving the same or any part or parts thereof, knowing the same to have been stolen, and in any indictment for feloniously receiving any property knowing it to have been stolen it shall be lawful to add a count for feloniously stealing the same; and where any such indictment shall have been preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who shall *try the same to find a verdict of guilty, either of stealing the property, or of receiving the same, or any part or parts thereof, knowing the same to

[*543

(w) Reg. v. Harris, Monmouth Spr. Ass. 1844, MSS. C. S. G. (z) 1 Hawk. P. C. c. 49, of Fraudulent Bankruptcy, sec. 4. Ex parte James, 1 P. Wms. 610, where the Lord Chancellor said, that a wife could not by the common law be a witness for or against her husband; and that though a former statute, 21 Jac. 1, authorized the commissioners to examine the wife touching any concealments of the goods, effects, or estate of the bankrupt, yet it did not extend to examining the bankrupt's wife touching his bankruptcy, or whether he had committed any act of bankruptcy, and how or when he became a bankrupt.

(a) Fost. 373.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 54, and 9 Geo. 4, c. 55, s. 47 (I.). The words in italics have been introduced in order to include all cases where property has been feloniously extorted, obtained, embezzled, or otherwise disposed of within the meaning of any section of this Act. As to hard labor, &c., see ante, p. 67; as to the proceedings against accessories, see vol. 1, p. 67, et seq.

1 See Comm. v. Andrews, 2 Mass. 409; State v. Scovel, 1 Rep. Const. Ct. 274; State v. M'Alvon, 40 Maine 133; State v. Wright, 4 M'Cord 358.

VOL. II.-27

have been stolen; and if such indictment shall have been preferred and found against two or more persons it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving the same or any part or parts thereof, knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same or any part or parts thereof knowing the same to have been stolen."(c)

Sec. 93. "Whenever any property whatsoever shall have been stolen, taken, extorted, obtained, embezzled, or otherwise disposed of in such a manner as to amount to a felony, either at common law or by virtue of this Act, any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive felonies in the same indictment, and may be tried together, notwithstanding that the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice."(d)

Sec. 94. "If upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict, upon such indictment, such of the said persons as shall be proved to have received any part or parts of such property."(e)

Sec. 95. Whosoever shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, obtaining, converting, or disposing whereof, is made a misdemeanor by this Act, knowing the same to have been unlawfully stolen, taken, obtained, converted, or disposed of, shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than three years,- -or to be imprisoned for any term not exceeding two years, with or without hard labor and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping "(ƒ)

Sec. 96. "Whosoever shall receive any chattel, money, valuable *security, *544] or other property whatsoever, knowing the same to have been feloniously, or unlawfully stolen, taken, obtained, converted, or disposed of, may, whether charged as an accessory after the fact to the felony, or with a substantive felony, or with a misdemeanor only, be dealt with, indicted. tried, and punished in any county or place in which he shall have or shall have had any such property in his possession, or in any county or place in which the party guilty of the principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished in the county or place where he actually received such property."(g)

Sec. 97. Where the stealing or taking of any property whatsoever is by this Act punishable on summary conviction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such property, knowing the same to be unlawfully come by, shall, on conviction thereof before a justice of the peace, be liable, for every first, second, or subsequent

(c) This clause is taken from the 11 & 12 Vict. c. 46, s. 3. The words "containing a charge of" are substituted for the word "for" in the former Act, in order that a count for receiving may be added in any indictment containing a charge of stealing any property. It will, therefore, apply to burglary with stealing, housebreaking, robbery, &c. The other words in italics provide for cases which frequently occur, and were not within the former clause; e. g., where different prisoners may be proved to have had possession of different parts of the stolen property.

(d) This clause is taken from the 14 & 15 Vict. c. 100, s. 15, and the first words in italies are added to include receivers in other felonies against this Act. See the note to sec. 6 of the Accessories' Act, ante, vol. 1, p. 69.

(e) This clause is taken from the 14 & 15 Vict. c. 100, s. 14.

(f) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 55; 9 Geo. 4, c. 55, s. 48 (I.); and 20 & 21 Vict. c. 54, s. 9. As to hard labor, &c., see ante, p. 67.

(g) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 56, and 9 Geo. 4, c. 55, 8. 49.

offence of receiving to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such property is by this Act made liable."

in

any

Sec. 114, after providing for the trial of any person who shall have in his possession in any one part of the United Kingdom any property which he shall have stolen other part of the United Kingdom, enacts that, "if any person in any one part of the United Kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever which shall have been stolen or otherwise feloniously taken in any other part of the United Kingdom, such person knowing such property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence in that part of the United Kingdom where he shall so receive or have such property, in the same manner as if it had been originally stolen or taken in that part."(h)

The author thought that the provisions of the 7 & 8 Geo. 4, c. 29, would have prevented a difficulty, which frequently occurred, in consequence of the proof not corresponding with the charge in the indictment, either where the party, being charged as the thief, turned out to have been the receiver, or, being charged as receiver, appeared upon the evidence to have actually stolen the property. And it was conceived that where, from the nature of the case, it appeared to be advisable, a count charging the party accused as receiver might be joined in the same indictment with a count charging him as the thief, and that he might be convicted upon such of the counts as was supported by the evidence. But, although there was no objection in point of law to including a count for stealing and a count for receiving in the same indictment, yet the judges all agreed that directions should be given to the respective clerks of assize not to put both charges in the same *indictment;(i) but under sec. 92 of the new Act counts for stealing and receiving may be joined.

[*545

Where an indictment contained five counts, all alleging a breaking into the house of J. Mason; but each count describing the goods stolen as the property of a different person; and the indictment also contained five other counts for receiving the goods, in which the property was laid in the same manner as in the five counts for stealing; it was objected that the 11 & 12 Vict. c. 46, s. 3, only made it lawful to add one count for receiving; but the sessions held that that section made it lawful to add as many counts for receiving as there were counts charging a stealing; and, on a case reserved, the judges were unanimously of opinion that the objection was groundless, and Alderson, B., said, "Why may there not be as many counts for receiving as for stealing? There is only one stealing and receiving, but the offence is laid in different ways, because there is a doubt to whom the property belonged." (j)

The prisoner was indicted for stealing three collars, a gold chain and locket, and a thimble-case; she was also charged with receiving the same articles. The prosecutrix missed the jewelry a week before the prisoner entered her father's service, and the collars whilst she was in it. It was contended that a count for stealing certain goods could not be joined with a count for receiving other goods, and that here in effect a count for stealing the collars was joined with a count for receiving the jewelry. Willes, J., after consulting Pollock, C. B., thought it better to put the prosecutor to elect as to which he would proceed.(k)

The first count charged the stealing "£100 in money, one purse, &c.," from the dwelling-house of R. Gilbert; the second the receiving" £35 in money, one smelling box, one purse, one opera-glass, and one bag of the money, &c, of the said R. Gilbert, then lately before feloniously stolen" It was objected that it did not appear that the property mentioned in the second was the same as that in the first

(h) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 76. The corresponding clause in the 9 Geo. 4, c. 55, s. 75 (I.), instead of "feloniously taken," had "unlawfully taken." See the whole clause, ante, p. 332.

(i) Rex v.

Galloway, R. & M. C. C. R. 234; Rex v. Madden, R. & M. C. C. R. 277. () Reg. v. Beeton, 1 Den. C. C. 414; 2.C. & K. 960.

(k) Reg. v. Ward, 2 F. & F. 19, Willes, J., said, "this was not to be taken to be a final decision, but that he would consult the other judges."

count which was necessary under the 11 & 12 Viet c. 46, s. 3, and it was held that the crown must elect on which count to proceed.(7)

In a case which occurred whilst the 14 & 15 Vict. c. 100, s. 14. was in operation, a doubt was started whether that section applied to a case where on a joint indictment against two for receiving, it appeared that each prisoner had received the whole of the goods stolen, but at different times and one after the other; but there seems no ground for this doubt.(m)

The first count charged Wilkinson with embezzling oats, hay, and straw in the usual form, and concluded that he did feloniously steal, &c.," the same. The second count charged Wilkinson with a larceny of the same property. The last count charged *Frampton with feloniously receiving the same property *546] "before then feloniously stolen." The jury found Wilkinson guilty on the first count, and Frampton on the last. It was objected that as Wilkinson had not been convicted of stealing, Frampton could not be convicted of receiving; but the court held, on a case reserved, that the conviction was right. It is very likely that, there being no statute making it an offence to receive goods which had been embez zled, the words of the section, which provide that a person who embezzles shall be deemed to have feloniously stolen, were inserted for the purpose of turning all embezzlements into larceny (n)

It will be observed that the present clause extends to any property, the stealing, taking, extorting, obtaining, embezzling or otherwise disposing whereof, amounts to felony.

In some cases, upon the repealed statutes, the distinction between a receiver and a principal was the subject of atte: tive consideration.

some rope.

Dyer and Disting were indicted for stealing a quantity of barilla, the property of M. Hawker. The barilla was on board a foreign ship at Plymouth, consigned to Hawker; Hawker employed Dyer, who was the master of a large boat, for the purpose of bringing it on shore; and Disting, together with several others, were employed as laborers, in removing it to Hawker's warehouses, after it was landed. And the jury found that, while the barilla was in Dyer's boat, some of his servants, without his privity, consent, or participation, severed some of it from the rest where it was stowed, and removed it to another part of the boat, where they concealed it under But they also found that Dyer afterwards assisted the other prisoner and the persons on board, who had before separated this part from the rest, in removing it from the boat, for the purpose of carrying it off. It was objected, for the prisoner Dyer, that his offence was not that of a principal, as laid in the indictment, but that of receiver or accessory after the fact. But Graham, B., was of opinion that, though for some purposes, as with respect to those concerned in the actual taking and separation, the offence would have been complete by the severance and removal of the barilla to another part of the boat, as being an asportation in point of law, yet, with respect to Dyer, who joined in the scheme before the barilla had been actually taken out of the boat, where it was properly deposited for the purpose of being landed, and who assisted in the act of carrying it off from thence, it was one continuing transaction, and could not be said to be completed till the removal of the commodity from such place of deposit; and that Dyer having assisted in the act of carrying it off, was therefore guilty as principal.(0)1

Another case arose out of the same transaction. The rest of the barilla was

(1) Reg. v. Sarsfield, 6 Cox C. C. 12; Pigot, C. B., and Richards, B.

(m) Reg. v. Dring, D. & B. 329. The Statute of Frauds, 29 C. 2, c. 3, s. 17, is "except the buyer shall accept part of the goods so sold, and actually receive the same," and it has never been doubted that a receipt of the whole was within this clause.

(n) Reg. v. Frampton, D. & B. 585.

(0) Rex v. Dyer. Graham, B., conferred with Le Blanc, J., and afterwards said that he was fully satisfied that his opinion was well founded: 2 East P. C. c. 16, s. 154, p. 767, 768. See per Cresswell, J., in Reg. v. Wiley, 2 Den. C. C. 47.

1 A person suffering a trunk of stolen goods to be put on board of a vessel destined for North Carolina, as a part of his baggage, he having taken his passage, is such a reception of the goods as a purchaser or bailee, as will justify a conviction under the statute for receiving stolen goods: State v. Scovel, 1 Mills' Const. Rep. 134.

lodged in M. Hawker's warehouse; while it was there several persons, employed as laborers or servants by Hawker, entered into a conspiracy to steal some of it; accordingly, some of them, who had access to the warehouse, removed a parcel *of it nearer to the door than it was before, in the course of the morning; [*547 and about nine at night these persons, together with the prisoners Atwell and O'Donnell, who had in the meantime agreed to purchase it of the others, came to the warehouse yard and assisted the others, who took it out of the warehouse, in carrying it away from thence. They were all indicted as principals in the felony; and the same objection was made as before, that Atwell and O'Donnel were only receivers or accessories after the fact, the felony being complete before their partici pation in the transaction. But it was ruled that, so long as the goods remained in the warehouse, which was the lawful place of their deposit, although to some purposes, as to those who severed this parcel from the rest for the purpose of stealing it, and more conveniently removing it afterwards, the felony might be said to be complete; yet it was a continuing transaction as to those who joined in the same plot before the goods were finally carried away from the premises; and that all the defendants, having concurred in, or being present at the act of removing them from the warehouse wherein they were lawfully deposited, were principals.(p)

But where the goods had been so entirely taken away from the premises or actual possession of the owner, that their further removal could not be deemed a continuing part of the original taking, the case was holden to come under a different consideration; and the party concerned only in such further removal was decided not to be guilty of stealing the goods. Upon an indictment for larceny, in stealing several firkins of butter and some cheeses, the facts proved were, that two men, in the absence of the prisoner, broke open the warehouse of the prosecutor, stole the butter and cheese in question, carried them into the adjoining street, and deposited them at a distance of about thirty yards from the door of the warehouse: after which they went for the prisoner, brought him to the place, and informed him of what they had done; and he assisted in carrying the property to a cart, which was kept in waiting at some distance to be ready to convey it away. It was objected that the prisoner could not be found guilty of stealing, as the felonious taking of the property was complete before he had any part in the transaction. Bayley, J., however, in the first instance, thought that he might properly be found guilty; on the ground that as every continuation of a larceny is so far a new larceny and a new taking, as to sustain an indictment for larceny in any county into which the property is carried, and as the possession in law of the property in this case remained in the prosecutor, notwithstanding the removal of it from his warehouse to the place where it was deposited in the street, so that he might have brought trespass against any stranger taking it from the place in the street without any felonious intent; it might be considered that the prisoner, who was present aiding and abetting in a continuation of the larceny, was a principal in the larceny so continued; and the prisoner was accordingly convicted. But, on a case reserved, the judges were of opinion that as the property was removed from the owner's * *prem

ises before the prisoner was present, he could not be considered as a princi- [*548

pal; and that the conviction of him as a principal was therefore wrong.(q) So, going towards the place where a felony was to be committed in order to assist in carrying off the property, and assisting accordingly, was held not to make the party a principal, if he was at such a distance at the time of the felonious taking as not to be able to assist in it. The prisoner, and J. S., went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were, and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking.(r) But where a man committed a larceny in a rom of a house, in which room he lodged, and threw a bundle containing the stolen pro

(p) Rex v. Atwell, tried by Graham, B., at the same time as Rex v. Dyer, and decided after the like consideraton: ante, note (o), 2 East P. C. Ibid. See other cases on this subject, ante, vol. 1, p. 50, et seq.

(9) Rex v. King, R. & R. 332. And see Rex . M'Makin, R. & R. 333, note (b). (r) Rex v. Kelly, MS., Bayley, J., and R. & R. 421. And see ante, vol. 1, p. 51.