
    Supreme Court—General Term—First Department.
    
      July, 1889.
    PEOPLE v. BRIEN.
    Larceny.—Receiving Stolen Goods.—Penal Code, § 29.
    Where, on a trial for receiving stolen goods, the evidence shows that the defendant himself, in conjunction with another person, stole the goods, he cannot be convicted of receiving stolen goods. Where it appears that the defendant induced another person to procure certain goods on forged orders, both are guilty, as principals, of larceny.
    Appeal by defendant, Michael Brien, from a judgment of the Court of Sessions of Hen- York, entered on May 21, 1886, Hon. Frederick Smyth, presiding; entered upon a conviction of defendant for receiving stolen goods.
    The indictment against defendant and one George A. "Williams contained four counts. The first count charged larceny of certain cases of silk, the property of the United States, of the aggregate value of $6,180 ; the second count charged receiving such stolen property; the third count charged the larceny of said silk, and alleged that the separate parcels of the same were respectively the separate property of certain specified persons; the fourth count charged the receiving of said last-mentioned stolen property.
    These cases of silk had been imported and were sent to the public stores for examination and appraisement. When this examination and appraisement were had the duties were to be fixed, and on their payment to the United States Government the goods were to be held ready for delivery to the importers. o
    The procedure to be observed by the importer in obtaining his goods from the public stores was substantially as follows:
    When the importer paid the duties at the Custom House the cashier there sent a notice to the public stores that the duties had been paid. A delivery order was then made out, containing the number of the invoice, cases, and description of the goods. The register clerk at the public stores compared this order, when presented, with the report from the cashier’s office at the Custom House, and if correct he stamped upon it the words “duty paid” and affixed his signature. Then the order was presented to the deputy collector, and on his seeing that the register clerk had marked “ duty paid,” and had also signed it, he affixed his signature. A truckman employed by the importer then presented the order and was given a slip, and when the goods were examined and compared they were delivered to the truckman who held the slip and who receipted for them.
    Some days before the larceny Brien said to Williams that he wanted him for a day or two to drive a truck and take some goods to Patchogue or Jersey as soon as his partner got the papers ready. On the evening before the larceny Brien employed Williams and gave him three dollars, and told him to hire the truck and meet him next morning at a certain place, where he would have the papers ready for him.
    They met as agreed. Brien gave Williams three dollars additional and told him to take his truck to the public stores and present the delivery orders, which he then gave him, at the taight side; told him to get the goods and take them on his truck to a certain house on Palisade avenue, Jersey City.
    Williams presented the orders and subsequently got the cases and took them to the place directed in Jersey, where he met Brien, who took the goods from him and put them in a barn and returned with him on the truck-to New York.
    After Williams presented the delivery orders the clerk in the office gave him two slips. The goods were not in sight, and while waiting, he, Williams, left the premises and went and had a drink with the watchman. On -his return the goods were on the platform; he presented the slips and they were delivered to him, when he placed°them on the truck.
    The goods were not delivered to Williams when he presented the delivery orders, but subsequently when he presented the slips and receipted for them. These slips are examined, and it ivas upon the production of them and on his receipt that the goods were actually delivered to the carman. Subsequently the goods were found in the barn in Jersey—which was described by Williams.
    Brien was placed on trial, Williams being used as a witness for the prosecution, and at the close of the people’s case, the learned recorder took from the consideration of the jury the first and third counts, charging larceny, and submitted the case on the second and fourth counts charging receiving, on which the appellant was found guilty.
    
      Jno. R. Fellows, district-attorney (Jno. W. Goff. assistant), for the people, respondent. The conviction of the appellant of criminally receiving stolen property was justified by the evidence.
    That Williams was the thief cannot be disputed.
    That he perpetrated the larceny alone is uncontradicted.
    That the appellant furnished the money with which to hire the truck and on which the property, when stolen, waste be placed, and gave directions where the stolen property was to be secreted, is proven beyond a doubt.
    When was the larceny committed and completed ?
    When was the criminally receiving committed and completed ?
    In answer to the first question, the larceny was committed and completed when Williams removed the cases from the platform of the public stores; up to that moment there had not been an asportation. The goods were in the custody of the United States, which had a special property in them until the'duties were paid. The presentation of the forged delivery orders did not divert that property, neither did it give to the thief the manual possession of it.
    These orders but purported to be evidence that the duties had been paid, but to obtain the goods the thief had to represent himself to be the carman of the importer, on which he received a delivery slip, and subsequently on the production of this slip he received manual posssssion of the goods, and not until he removed them was the larceny complete.
    In answer to the second question, the .criminally receiving was committed and completed when the stolen property was placed upon the truck.
    The truck was furnished by the appellant. It was the receptacle furnished by him to receive the goods after they had been stolen.
    Before the cases reached the trucks they had been stolen —the larceny was completed. Williams acted for himself and controlled his own actions from the time he presented the forged orders until he placed the cases on the truck. The larceny was committed by him when Brien was not present or directing.
    When Williams took the cases from the platform they were in his manual possession absolutely. He parted with . that manual possession when he placed them on Brien’s truck.
    A man may be a thief on his own account, and after the stealing act as agent for the receiver.
    A keeper "of a “fence” well known to thieves as a place for the secreting or disposal of stolen property cannot be charged as principal in all in all the larcenies which may be committed by them, simpty because he is aware of their purpose and felonious intent and furnishes them with ways and means of disposing of the plunder.
    It is the delivery to the receiver, actual or constructive, that constitutes the offense in him.
    
      Ambrose H. Purdy and Abraham Suydam, for defendant, appellant.
   Beady, J.

The appellant engaged from one Williams to obtain from one of the public stores certain merchandise, 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 offense of the latter necssarily involved two persons, namely, the persons 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, lie 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 whieli he has stolen. The statement of the proposition seems to refute it. Both offenses, 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 stolen 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 accessoiw 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 instante, a felonious receiving,- and made two offenses 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.

Note.—For cases where a defendant absent at the time of the actual commission of the crime was convicted as a principal, see People v. Batterson (rape), 6 N. Y. Crim. Rep. 173, and People v. Bliven (abortion), Id. 865.

The judgment must be reversed, and new trial had.

Van Bkunt, P. J., concurs.

Daniels, J., concurs in the result.  