Territory of New Mexico v. Graves

OPINION OP THE COURT. HANNA, J. In the presentation of this case a number of errors are assigned with respect to giving and refusing instructions, and admission of testimony, but as-we have concluded to base our opinion upon the merits of the case it will not be necessary to pass upon these assignments of error. The question of larceny having been eliminated from the case by the verdict of the jury, we will turn our attention to the second count of the indictment upon which the verdict of the jury in this case rests. This -count is based upon sec. 1117 of the Compiled Laws of 1897, which is as follows: “Every person who shall buy, receive or aid in the concealment of stolen money, goods or property, knowing the-same to have been stolen, shall be punished by imprisonment in the Territorial prison or county jail not more than four years nor less than three months, or by fine not exceeding five hundred dollars.” Our attention has been called to similarity of this statute and the Virginia statute, and the further fact that the Supreme Court of Appeals of Virginia, in the case of Hey v. The Commonwealth, 32 Gratt (Va.) 946-951, held that to convict an offender against this statute four things must be proved, viz: “1. That the goods or other things previously stolen-by some other person; 2. That the accused bought or received them -from another person, or aided in the concealing of them; 3. That, at the time he so bought or received them, or aided in concealing them, he knew they had been stolen; 4. That he so bought or received them or aided in concealing them, malo animo, or with a dishonest intent.” 1 It has been said that the general rule, subject to a few exceptions, is that to sustain a conviction on this charge, the burden rests upon the prosecution to prove-the four distinct elements enumerated above. 10 Encl. of Evd. 665. 2 Under sec., 1117 the felonious receiving of stolen property, knowing the same to have been stolen, is a substantive offense, and distinct from larceny. Higgins v. People, 135 Ill. 343. 3 We are also of the opinion that where the evidence shows that the defendant was himself guilty of the theft, there can be no conviction of feloniously receiving the property in question knowing it to have been stolen. State v. Honigg, 78 Mo. 249. Among the numerous assignments of error we deem it necessary to consider but one, viz: the alleged lack of evidence to support the verdict. We are reluctant to base our opinion, in any case, upon insufficiency of evidence, but in this case there is clearly a total failure of proof as to the essential elements, pointed out in this opinion, necessary to constitute the offense charged in the second count of the indictment in this case. It would appear from the record that the jury mistook the evidence as establishing that appellant was guilty of receiving, or aiding, in the concealment of stolen property, or both; while if any criminal offense is proven, by the evidence, it is that of larceny. When the appellant took possession of the cow, at the Berrendo place, he was guilty of the crime of larceny, if he committed any crime at all. For the reasons assigned, the judgment is reversed and the cause remanded.