
    The People of the State of New York, Resp’t, v. Michael Brien, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Crimenai law—Larceny—Receiving stolen goods—Penal Code, § 39.
    Under the Penal Code § 39, which provides that “ a person concerned in the commission of a crime, whether lie directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands or induces, or procures another to commit^ crime, is a principal,” where one induces another to procure merchandise by means of forged orders, he is equally a principal with such other, and where he himself receives the stolen property, he cannot be convicted criminally of receiving the property so obtained.
    3. Same—Charge to jury.
    The court charged that, if the defendant employed Williams to steal the property, and Williams, in pursuance thereof, received the stolen property he was acting as agent for the defendant. Held, error.
    Appeal from a judgment in the court of general sessions,
    
      A. Suydam, for app’lt; J. R. Fellows, for resp’t.
   Brady, J.

The appellant engaged one Williams to obtain from one of the public stores certain merchandize, and gave him, for that purpose, forged orders, in form such as were required to obtain its possession. He was indicted jointly with Williams for larceny, and for criminally receiving-stolen property, and was tried separately. At the close of the case for the prosecution, the learned recorder ruled out the counts for larceny, and submitted the charge on those for receiving property, knowing it to be stolen. The appellant was found guilty, and the curious anomaly is presented of the conviction of a man for receiving from himself goods stolen by him. There can be no doubt of the appellant’s, participation in the crime by which the goods were obtained. He was the instigator—the primary cause—having projected it, and having employed Williams to assist him in perfecting it. It was through the agency of Williams, and by his use of the forged orders which he received from the appellant, that possession of the goods was obtained. They were principals, therefore, equally guilty.

The major crime was the criminal act by which possession of the goods was obtained from the lawful custodian of them, and this was done by both. It is therefore a taking by both, and not a receipt for one from the other. In the more ancient order of procedure the conviction of the thief necessarily preceded the trial of the receiver, and the offence of the latter necessarily involved two persons, namely the person who purloined the property, and the person who received it, knowing it to have been stolen. If the latter was accessory before or after the fact, he was not a receiver, but a principal. Under the new procedure, it is not necessary to convict the thief before proceeding to try the receiver, but it clearly contemplates the existence of the former. It is not now necessary to aver nor to prove that the principal who stole the property has been convicted, or is amenable to justice—such are the provisions of section 551 of the Penal Code. This materially affects the question here to be passed upon in limine, and that is whether a man can be convicted of feloniously receiving from himself property which he has stolen. The statement of the proposition seems to refute it. Both offences and the two persons necessary to accomplish one of them are united in the same person, if it be otherwise. This may be the outcome of modern science in the administration of criminal law, but it seems to be at war not only with the principle and doctrine, but impossible without creating a new fiction by which the wrongful taker of the property shall be presumed to be evolved from the receiver and separately existing. Larceny and the crime of receiving solen goods are separate, distinct and independent, requiring different kinds of proof. The receiver may be convicted, although he was in no way connected with the original taking. It is enough that he knew of it when he received the property. The attempt therefore to sustain this conviction is by insisting that Williams was the thief. The learned district attorney in his brief, says: “ That Williams was the thief cannot be disputed, and that he perpetrated the larceny alone is uncontradicted.” He is driven to this_ attitude, but it is wholly untenable. The conception of the crime according to the record was by the appellant, and Williams was only an accessory in point of fact. The appellant was a principal. Section 29 of the Penal Code sets all doubt of that at rest.” “ A person concerned in the commission of a crime, whether he_ directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.” It is conceded that Williams was the thief as we have seen, and the law thus places the appellant side by side with him. The learned recorder charged the jury, that if the appellant employed Williams to steal the property and Williams in pursuance of that employment furnished the truck, received the stolen property and placed it on the truck, he was acting as the agent of the appellant. This charge proceeds upon the same erroneous theory. The property was not stolen by the persons from whom it was received, and could not be received as stolen property, unless, which has never been held in this country, the felonious taking constituted, eo instanti, a felonious receiving and made two effenses out of one act, each apparently inconsistent with the other. It is quite apparent that the errors complained of sprung from the assumption that Williams was the only thief, and this foundation made the whole superstructure false.

The judgment must be reversed, and new trial had.

Van Brunt, Oh. J., concurs; Daniels, J., concurs in the result.  