CHAPTER IV. RECEIVING STOLEN GOODS, &C. AT common law any person, who knowingly "relieved, comforted or assisted" a thief by receiving from him possession of the stolen goods, became an accessory after the fact to the felony, and therefore himself a felon. There is authority, too, for saying that such a receipt with guilty knowledge was in itself a substantive misdemeanour at common law.1 The law on the subject is now stated thus in section 33 of the Larceny Act, 1916: "(1) Every person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour shall be guilty of an offence of the like degree (whether felony or misdemeanour) and on conviction thereof liable (a) in the case of felony, to penal servitude for any term not exceeding fourteen years; (b) in the case of misdemeanour, to penal servitude for any term not exceeding seven years; (c) in either case, if a male under the age of sixteen years, to be once privately whipped in addition to any punishment to which he may by law be liable. (2) Every person, who receives any mail-bag, or any postal packet, or any chattel, or money, or valuable security, the stealing, or taking, or embezzling, or secreting whereof amounts to a felony under the Post Office Act, 1908, or this Act, knowing the same to have been so feloniously stolen, taken, embezzled or secreted, and to have been sent or to have been intended to he sent by post, shall be guilty of felony and on conviction thereof liable to the same punishment as if he had stolen, taken, embezzled or secreted the same." 11 Hale, 620. 2 As to knowingly buying or receiving from a soldier arms, ammunition, &c., see 44 & 45 Vict. c. 58, s 56. (3) Every such person may be indicted and convicted, whether the principal offender has or has not been previously convicted, or is or is not amenable to justice." Where the principal crime amounts to a felony, whether the person who committed it has or has not been tried or convicted, any person accused of receiving the goods may be tried : (i.) as an accessory after the fact to the principal crime; or (ii) as committing a distinct felony, viz., receiving. It is usual now to insert in every indictment for larceny a second count for receiving the property knowing it to have been stolen; and the jury can find the prisoner guilty of either crime. Where the thief and the receiver are jointly charged on such an indictment, they can find one guilty of larceny and the other of receiving. Where stolen property has passed through many hands, any number of persons who have at different times knowingly received such property or any part thereof may be charged and tried together. But the judge may always order a separate trial of any count or counts, if he thinks that any of the accused would be prejudiced or embarrassed by all the counts being tried together. 3 In order to convict a prisoner of "receiving stolen goods, knowing them to have been stolen," the prosecution must prove: (i.) that the goods were stolen; (ii.) that the prisoner received the goods into his possession; and (iii.) that the prisoner knew at the time he so received them that they were stolen. We take here the case of goods stolen, as it is under that form that the offence of receiving most usually occurs. The same general rules, of course, apply to the receiving of goods embezzled or obtained by fraud or threats, &c. (i.) The original theft must be proved against the receiver just as strictly as if the thief was being tried for larceny, but by such evidence only as is admissible against the receiver. Thus anything, which the thief said behind the back of the receiver, is inadmissible against the latter. Any confession of guilt made by the thief when charged with the crime will be excluded, and the jury must disregard the fact that, as some 4 See the indictment, No. 14, in the Appendix. Larceny Act, 1916, s. 40 (3). 3 Indictments Act, 1915, s. 5 (3). ♦ R. v. Smith (1897), 18 Cox, 470; and see R. v. Christie, [1914] A, C. 545. times happens, they have just heard the thief plead guilty to the larceny. It is, of course, open to the prosecution to call the thief as a witness on this issue-as on all others; and if under examination on the trial of the receiver he admits his guilt in the witness-box, this is some evidence to go to the jury; but if uncorroborated, it is entitled to little weight, and the judge will no doubt advise the jury to acquit the receiver.1 The goods must have been dealt with in such a manner that they are technically "stolen goods" in law, when the prisoner receives them. Thus, if goods are stolen and the thief captured, and the owner of the goods then allows the thief to take them to the receiver in accordance with their previous arrangement in order to entrap, him, no conviction for receiving can be sustained; for the goods, when received, were no longer "stolen goods." 2 For this reason too, difficulties often arose, when the prisoner had received from a wife goods that belonged to her husband or from a husband goods that belonged to his wife; it is only in certain cases that one spouse can steal from the other." Formerly a person could not be convicted for receiving within jurisdiction goods that had been stolen abroad. But now by section 33 (4) of the Larceny Act, 1916, any person, who without lawful excuse receives or has in his possession any property stolen outside the United Kingdom, knowing it to have been stolen, is liable to penal servitude to the extent of seven years, and can be tried for that offence in any county in England in which he was apprehended or is in custody.5 (ii.) It must also be proved that the prisoner consciously received the goods into his actual possession. If the goods still remain in the exclusive possession of the thief, the prisoner cannot be convicted, however clear may be the evidence that he knew that they were stolen and intended to receive them." There must be a change of possession. But it is not necessary that the prisoner should have manual possession of the goods; it is sufficient if they are to his knowledge in the actual possession of some one over whom he has control, and who holds them to his order. Moreover, if the receiver has joint possession of the goods with the 1 R. v. Robinson (1864), 4 F. & F. 43. 2 R. v. Schmidt (1866), L. R. 1 C. C. R. 15; R. v. Hancock (1878), 14 Cox, 119; R. v. Villensky, [1892] 2 Q. B. 597. 8 R. v. Kenny (1877), 2 Q. B. D. 307. 4 See ante, pp. 345, 346. 5 See s. 39 (1). 6 R. v. Wiley (1850), 20 L. J. M. C. 4. thief, he may be convicted; it is otherwise where he merely negotiates for the sale of stolen goods which are wholly in the possession of another.1 Thus, possession of stolen goods by a servant may be possession by his master if the master knew that they were in the possession of his servant.2 In consequence of the rule that there must be a change of possession, it was formerly held that a wife could not be convicted for receiving from her husband goods which she knew he had stolen; for her possession was his possession. But now it is clear that a married woman can be in possession, apart from her husband, of articles of feminine attire, and of other things which are part of her separate estate. Hence, if a married woman receives such goods as a gift from her husband, knowing them to have been stolen, she may be convicted. A husband, who received from his wife goods which she had stolen, could always be convicted of receiving. (iii.) Lastly, the prosecution must prove that at the time he received the goods the prisoner knew that they were stolen. If he originally received them innocently, he cannot be convicted of this offence, although he retained them in his possession after he had learnt that they were stolen. Any facts which would have raised suspicion in the mind of a reasonable man will be evidence to go to the jury on this issue. Thus the jury may be asked to infer the guilty knowledge of the prisoner from the facts of the case proved before them, e.g., that the goods were brought to him by night, that he bought them at a price much under their real value, that when charged he denied that he had them in his possession, or that he gave at different times conflicting accounts of how he came by them. Again, the person who stole the goods can be called to prove the guilty knowledge of the receiver. Formerly, however, judges were very reluctant to allow the receiver to be convicted where the only evidence against him was that of the thief, who was an accomplice; the mere fact that the stolen property was found on the prisoner's premises was not considered sufficient corroboration of the evidence of the 1 R. v. Watson, [1916] 2 K. B. 385. R. v. Pearson (2) (1908), 72 J. P. 451. 3 See the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), ss. 12, 16; and R. v. Payne, [1906] 1 K. B. 97. ♦ R. v. M'Athey (1862), 32 L. J. M. C. 35. thief that the prisoner received the property knowing it to have been stolen.' But in the present day such evidence would probably be held sufficient corroboration to enable the case to be left to the jury. And if the stolen goods are found. in the possession of the prisoner recently after the theft, this is a very material fact for the consideration of the jury, though it does not of itself shift the onus of proof and throw upon the prisoner the burden of proving that he received the goods honestly. What is "recent possession" depends upon the nature of the goods in each particular case. "If the jury think that the explanation given" (by the prisoner) "may reasonably be true, although they are not convinced that it is true, the prisoner is entitled to be acquitted, inasmuch as the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner. The onus of proof is never changed in these cases; it always remains on the prosecution." 3 In order to further facilitate the proof of the receiver's guilty knowledge, it has been enacted that "there may be given in evidence at any stage of the proceedings (a) the fact that other property stolen within the period of twelve months preceding the date of the offence charged was found or had been in his possession ;* (b) the fact that within the five years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty. This last-mentioned fact may not be proved unless (i.) seven days' notice in writing has been given to the offender that proof of such previous conviction is intended to be given; (ii.) evidence has been given that the property in respect of which the offender is being tried was found or had been in his possession." 1 R. v. Robinson (1864), 4 F. & F. 43; R. v. Pratt (1865), ib. 315. 2 R. v. Schama, R v. Abramovitch (1914), 84 L J. K. B. 396; R. v. Badash (1918), 87 L. J. K. B. 732; R. v. Sanders (1919), 14 Cr. App. R. 11. Per Lord Reading, C. J., 84 L. J. K. B. at p. 398. 4 See R. v. Smith, [1918] 2 K. B. 415. Larceny Act, 1916, s. 43 (1). |