act was obviously against her will, and that the presumption of law was so strong as to admit of proof of force.1

9. Principals and Accessories.

All persons present aiding, assisting or encouraging a man to commit a rape may be indicted as principals in the second degree, whether they be men or women.2

Under the common law, when it was held that a boy under the age of fourteen could not be convicted of a rape, it was nevertheless held that, if he aids and assists another person in the commission of the offence, he is not the less a principal in the second degree if it appear, under all the circumstances, that he had a mischievous disposition.3

It was also held that the husband of a woman may be likewise guilty as a principal in the second degree by assisting another person to commit a rape upon his wife; for though in marriage the wife has given up her body to her husband, yet he cannot compel her to prostitute herself to another.4

XXXVI. RECEIVING PROPERTY WHICH HAS BEEN STOLEN OR

EMBEZZLED.

At the common law, receivers of stolen goods were punishable only as for a misdemeanor, even after the thief had been convicted of felony in stealing them.5 But by the New York statute the offence is, in the discretion of the court, punishable either as a felony or as a misdemeanor, and the provisions of the Revised Statutes are made applicable both to property taken by larceny and by embezzlement.

1. Statutory Enactments.

Every person who shall buy or receive in any manner, upon any consideration, any personal property of any value whatsoever, that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, is guilty of a felony.5

2 Whee. Cr. Cas., 152. 1 Hawk., ch. 41, § 10. 4 Blac. Com., 211; 1 Hale, 630; 3 C. & P., 396.

1 St. Tr., 387; l.Hale, 629. Fost., 373; 1 Hale, 530, 616.

2 R. S., 680, § "3.

In any indictment for such offence it shall not be necessary to aver, nor on the trial thereof to prove, that the principal who stole such property has been convicted.1

Every person who shall in any way receive any money, goods, right in action, or any valuable security or effects whatever, knowing the same to have been embezzled, taken or secreted contrary to the provisions of the Bevised Statutes, shall, upon conviction, be punished in the same manner and to the same extent as is prescribed upon a conviction of a servant for such embezzlement.2

2. Of the Guilty Knowledge.

The intent, as in larceny, is the chief ingredient of the offence.3 The language of the statute is "knowing the same to have been stolen or embezzled."4

In order to constitute the crime of receiving stolen goods, knowing them to have been stolen, the stolen property must be received feloniously, or with intent to secrete it from the owner, or in some other way to defraud him of the property. Though the statute is silent as to the intent of the receiver, it must be construed according to its manifest object, which is to punish persons who receive stolen property, to defraud the owner of his property.5

A receiver of goods, knowing them to have been stolen, with intent to extort from the owner, a reward for delivering them to him, is within the prohibition of the statute,5 Thus, a police justice, having learned that bonds had been stolen from a bank, procured an inteview with agents of the bank, in which he proposed to procure a restoration of the property if they would pay a certain reward. This was agreed to, and he procured and brought the property to them, and then procured the reward. The jury found that he procured the agency from the bank, under a previous arrangement with the thief, intending to make a profit to himself from the crime, but concealed this intent from the bank, and it was held that he was punishable as a receiver.7

2 R. S., 680, § 74.

2 R. S., 678, § 63.

Cassels v. State, 4 Yerg., 149.

Supra.

Peo. v. Johnson, 1 Park. Cr. R., 564.

Peo. c. Wile7, 3 BUI, 194, 'Id,

3. What Amounts to a Receipt, Manual and Constructive Possession.

A manual, possession or touch is unnecessary in order to sustain a conviction; it is sufficient if Jhere is a control by the receiver over the goods, and a person having joint possession with the thief, may be convicted as- a receiver. A conviction for receiving is good, although a conviction for stealing would have been supported by the same evidence, if the jury had so found.1 It is necessary that there should be some control over the property by the alleged receiver; thus, it was held that C, the prisoner, did not receive certain fowls which were stolen, as they all along remained in the manual possession of A and B, and were never under C's control, and it was not the intention of A and B that C should have them, except on the contingency, which never happened, of his completing a bargain for them."

4. Principals and AccessoriesIt was held in an English case, that if two prisoners are charged jointly with receiving stolen goods, a joint act of receiving must b. e proved, and proof that one received in the absence of the other, and afterwards delivered to him, will not be sufficient. Successive receivers are all separate receivers, and punishable as such.3

But in cases of joint receivers, it is held in this State, that "where several persons are indicted for feloniously receiving embezzled goods, knowing them to have been embezzled, all who are proved to have confederated in the transaction may be convicted, though the receiving was at different times and places, and though all were not present.4

If a servant commit a larceny at the time he gives his master's goods to an accomplice, both are principals. If a servant commit a larceny and afterwards deliver the goods to his accomplice, the latter is a receiver.5

5. Place of Trial

In the cases where any person shall be liable to prosecution as the receiver of any personal property that shall have been felonReg v. Smith, 1 Lead. Or. Cas., 576. Reg v. Wiley, J Lead. Cr. Cas., 582. Rex c. Messingham, R. & M. C. C. R., 257. Peo. v. Stein, 1 Park. Cr. R., 202. Rex v. Butteris, 6 C. & P., 147; Reg ». Gruncell, 9 C. & P., 365.

iously stolen, taken or embezzled, he may be indicted, tried and convicted in any county where he received or had such property, notwithstanding such theft was committed in another county.1

6. Of the Value.

In order to constitute the offence of receiving stolen goods, it is sufficient if the thing be of some value, however small.2

XXXVII. ROBBERY.

According to Blackstoxe, robbery is designated as a species of larceny from the person. By that eminent writer larceny from the person was divided into two kinds. He says larceny from the person is either by privately stealing or by open and violent assault, which is usually called robbery.3 And in section 242 Book IV., he further says: "Open and violent larceny from the person, or robbery, the raptna of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value by violence or by putting him in fear.4 And that 1st. There must be a taking, otherwise it is no robbery. 2d. It is immaterial of what value the thing taken is, a penny as well as a pound thus forcibly extorted makes a robbery. 3d. The taking must be by force or by a previous putting in fear, which makes the violation of the person more atrocious than private stealii g, and that this previous violence or putting in fear is the criterion which distinguishes robbery from other larcenies.

Three elements are necessary to constitute the offence of robbery as it is generally understood: 1. A taking of property from the person or presence of its possessor. 2d. A wrongful intent to appropriate it. 3d. The use of violence or fear to accomplish the purpose. The first and second of these elements, the third being wanting, constitute simple larceny. The first and third, without the second, amount at most to a trespass. The second and third, without the first, constitute an attempt to rob.5

1. Definition by Statute.

First Degree.—Every person who shall be convicted of feloniously taking the personal property of another from his person,

2 R. S., 727, § 43; Wells c. Peo., 3 P. Cr. R., 473.

Peo. c. Wiley, 3 Hill, 194.

4 Blac. Com., 241.

1 Hawk. P. C., 95.

Report of N. Y. Penal Code, 1864.

or in his presence and against his will, or by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.1

The essential facts necessary to constitute robbery in the first degree, under our statute, are:

1st. The felonious taking of the personal property of another.

2d. From his person or in his presence.

3d. Against his will.

4th. By violence to his person, or by putting such person in fear of some immediate injury to his person.

Second Degree.—Every person who shall be convicted of feloniously taking the personal property of another in his presence or from his person, which shall be delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the threats of the person so receiving or taking such property, shall be adjudged guilty of robbery in the second degree.2 '.

2. Of the Taking and Felonious Intent.

There must be a taking, otherwise it is no robbery;3 and it must be directly from his person or in his presence, otherwise it is no robbery.4 Not only a taking in fact but a taking in law is sufficient to constitute a robbery.* Where the thief receives money, etc., by the delivery of the party, either while the party is under the terror of an actual assault, or afterwards, while the fear of menaces made use of by the thief continues upon him, such thief may, in the eye of the law, as correctly be said to take the property from the party as if he had actually taken it out of his pocket.8 Thus, if upon A assaulting B and bidding him deliver his purse, B refuse so to do, and then A pray B to give or lend him money, and B does so accordingly under the influence of fear, the taking will be complete.7

1 2 R. S., 677, § 57. * Id.

• 4 Black., 242.

4 Comyns, 478; Stra., 1015.

• 1 Hale, 532; 1 Inst, 68.

• 2 East. P. C., 711-714. '1 Hale, 533.

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