Perlmutter, Donald S.

English

University of Denver

Denver Law Review Volume 39 Issue 6 Article 3 April 2021 Criminal Law - Testimony of Accomplices and Codefendants - Receiver of Stolen Goods or Thief Donald S. Perlmutter Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Donald S. Perlmutter, Criminal Law - Testimony of Accomplices and Codefendants - Receiver of Stolen Goods or Thief, 39 Dicta 383 (1962). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. NOVEMBER-DEcEMBeR, 1962 DCASE COMMENTCRIMINAL LAW. - TESTIMONY OF ACCOMPLICES ANDCODEFENDANTS-RECEIVER OF STOLENGOODS OR THIEFTwo admitted burglars testified they met at the defendant'shome and together laid out a plan, mastermined by the defendant,to burglarize the C. F. & R. Steel Fabricating Co. The two witnessestook various tools from the plant on the night of the burglary, whichthe defendant had indicated he wanted and would purchase, andwhich he did in fact purchase. Defendant was convicted of receivingstolen goods and sentenced to life imprisonment as a habitualcriminal. Among the errors claimed by the defendant on appealwas that the thieves of the stolen property received by him wereaccomplices to that crime and that it was error to submit the caseto the jury on their uncorroborated testimony. Held, the receivingof stolen goods, knowing them to have been stolen, is a crime dis-tinct from the original larceny and the party committing larceny isnot the accomplice of one who purchases from him, his testimonyis therefore not subject to the infirmities normally attached toaccomplice testimony. The test to be applied is whether the wit-ness himself could be indicted for the offense with which thedefendent is charged; thus, one who admits theft cannot at thesame time be charged with knowingly receiving stolen goods. Burnsv. People, 365 P. 2d 698 (Colo. 1961).As long ago as 1873 the Colorado Supreme Court recognized byway of dicta what was referred to even then as a well establishedprinciple, that courts will generally advise a jury not to convicton the uncorroborated testimony of an accomplice and that whencorroboration is lacking, omission of an instruction cautioning thejury on the credibility of an accomplice is reversible error.' Onmore than one occasion, trial court convictions have in fact beenreversed for failure to tender such cautionary instructions.2 Ofcourse, it is also recognized that where accomplice testimony issupported by other witnesses and circumstances, failure to givethe cautionary instruction is not a ground for reversal 3 The Colo-rado Supreme Court has also held, however, that where the trialcourt gave a cautionary instruction there may be conviction uponthe testimony of the accomplice, uncorroborated, if it is clear andconvincing, received with great caution, and shows guilt beyonda reasonable doubt.4 Rulings similar to these have also obtainedI Solander v. People, 2 Colo. 48 (1873). See also Klink v. People, 16 Colo. 467, 27 Pac. 1062(1891); Roberts v. People, 11 Colo. 213, 17 Pac. 637 (1888).2 E.g., O'Brien v. People, 42 Colo. 40, 94 Pac. 284 (1908).3 Solander v. People, supra note 1. Accord, Wilkins v. People, 72 Colo. 157, 209 Pac. 1047(1922), where the trial court refused to give a cautionary instruction. See also, Miller v. People,92 Colo. 481, 21 P.2d 1119 (1933), where there was a vigorous dissent in favor of cautionaryinstructions regardless of outside corroboration.4 Hoffman v. People, 72 Colo. 552, 212 Pac. 848 (1923). Accord, Mendelsohn v. People, 143 Colo.397, 353 P.2d 587 (1960); Schechtel v. People, 105 Colo. 513, 99 P.2d 968 (1940); People v. Boutcher,89 Colo. 497, 4 P.2d 910 (1931); Hamilton v. People, 87 Colo 307, 287 Pac 651 (1930).ICTADICTA NOVEMBER-DEcEMBER, 1962uniformly in the Tenth Federal Circuit,5 and in other federal courts.6With this background in mind, it must be understood that Burnsv. People is certainly not intended to stand for a departure fromthese well established principles. The problem, as the case clearlyindicates, is whether the rules as to the credibility of accomplicetestimony are to be applied where the uncorroborated testimonyof the thief is the basis of a conviction for receiving stolen goods;in other words, whether the one who stole the merchandise is anaccomplice of the one who knowingly received that same merchan-dise. Previous to the principal case, there existed only two supremecourt decisions in Colorado on this precise point of law. In thefirst, Newman v. People,7 the facts were similar to the Burns casein that the defendant had been convicted of buying and receivingfourteen bars of bullion belonging to a railroad, the evidence againsthim being the uncorroborated testimony of the boys who hadcommitted the larceny. The defendant Newman appealed his con-viction, citing as error the trial court's failure to give a cautionaryinstruction as to this testimony. The supreme court affirmed theconviction, holding that receiving stolen goods is a distinct crimefrom the original larceny, and the party committing the larceny isnot an accomplice of one who knowingly purchases the stolen goodsfrom him.Only four years later, in Moynahan v. People,8 the supremecourt reversed a conviction for receiving stolen goods on the basisof the trial court's refusal to caution the jury as to the testimonyof the thief of the stolen property. The court unequivocally heldthat a person who knowingly sells stolen goods is an accomplice5 E.g., Arnold v. United States, 94 F.2d 499 (10th Cir. 1938), where a mail theft conviction wasreversed on the ground that the. district court had not instructed the jury to receive the testimonyof an accomplice with caution, and where it was also recognized that although subject to beingreceived with caution, a conviction could be had on such testimony without corroboration. Accord,Hall v. United States, 109 F.2d 976 (10th Cir. 1940). See also, Reger v. United States, 46 F.2d 38(10th Cir. 1931), where it was held that there is no requirement for the district court to instructthat the testimony of an accomplice must be corroborated before it is sufficient for conviction, andthat the cautionary instruction given was sufficient. Accord, Johns v. United States, 227 F.2d 374(10th Cir. 1955).6 United States v. Glassner, 116 F.2d 690 (7th Cir. 1941); Rossi v. United States, 9 F.2d 362(8th Cir. 1925).7 55 Colo. 374, 135 Pac. 460 (1913).863 Colo. 433, 167 Pac. 1175 (1917).Trust The Moving and Storage RequirementsOf Yourself and Your Clients-To Men Who Understand Your Problems.CONFER WITH DON JOHNSONJOHNSON STORAGE & MOVING CO.Affiliated With United Van Lines221 RAceBroadway Local and World-wide 2-2855NOVEMBER-DECEMBER, 1962of the buyer, because the seller aids and abets in the commissionof that crime. Also recognized in the decision were what the courtreferred to as familar principles of law, that one may be botha principal and an accomplice by doing separate and distinctacts with the same property, and that in any crime where participa-tion of an individual has been criminally corrupt he is an ac-complice. No mention whatsoever was made in this decision of theNewman case, and so the two diametrically opposed decisions stood.The clearly opposite results reached in the two early Coloradocases are both typical and representative of the conflict whichpresently exists on this problem throughout the American jurisdic-tions.9 The Burns case may be said to have adopted the majorityrule,10 that the testimony of the thief against the receiver is notsubject to the infirmities which attach to accomplice testimony.Jurisdictions which have so held reason basically that the existenceof accomplice status requires proof that two persons are punishablefor the same offense, and that the theft and receipt of stolenproperty are separate crimes."1 The minority position, as representedby the holding in the Moynahan case in Colorado, is of coursediametrically opposed in holding the thief an accomplice of thereceiver of stolen goods and his testimony subject to a cautionaryinstruction. Jurisdictions which follow this point of view basetheir decisions on what are considered broad or liberal definitionsof accomplice, or on a broad definition of principal.1 2In addition to the majority and minority views, there appearsto be a third position taken in a number of jurisdictions whichnormally hold that the thief and receiver do not bear accomplicestatus-the majority view. This third approach arises as an ex-ception to the majority rule in cases where there is evidence of aconspiracy or plan between the two parties.1 3 In such cases thereis deemed a unity of criminal acts in such a manner that the twoare held to be accomplices, at least as far as the rules of evidenceas to accomplice testimony are concerned; thus, rules as to corrobor-9 For a complete discussion, see Annot., 53 A.L.R.2d 812 (1957).10 Id. at 826.11 E.g., Springer v. State, 102 Ga. 447, 30 S.E. 971 (1897), one of the early definitive decisionson this point of view. In that case it is reasoned that participation in the same criminal act andin the execution of a common criminal intent is necessary to render one criminal an accomplice ofanother, in the legal sense of that term; and that the actual thief, relative to the receiver ofstolen goods, is an independent criminal who does not and cannot participate with the receiverof such goods in the special offense committed by the latter. And, State v. Kuhlman, 152 Mo. 100,53 S.W. 416 (1899), another of the frequently cited early cases, where it was held that one whobears the relation of an accomplice is a principal in the first degree and is liable to be chargedand punished in the some manner as the principal, but that the thief of stolen goods would bechargeable only with a crime distinct from that of receiving stolen goods. The court drew theanalogy that the receiver of stolen goods could not be convicted of larceny.12 An excellent and exhaustive discussion of the minority view is contained in People v.Coffey, 161 Cal. 433, 119 Pac. 901 (1911). Briefly, the California court decided that because onecannot be convicted of the same offense for which the accused is charged does not prevent himfrom being an accomplice within the rules governing accomplice testimony. It was reasoned thatthe test of whether one is or is not an accomplice is simply whether his participation in the offenseis criminally corrupt; and that by all authority every person of legal responsibility who knowinglyand voluntarily co-operates with or aids, or assists, or advises, or encourages another in thecommission of a crime is an accomplice. The decision goes an to point out a false premise inthe other view, that an accomplice is one who con be charged with the same crime as the personon trial, the fallacy being that one is an accomplice because of the part played in a crime andnot because he may be indicted as a principal. The court also pointed out that many states holdthat all accomplices may be indicted as principals, but to hold as a result that if a personcannot be indicted as a principal he is not an accomplice, is fallacious reasoning. It was heldthat wherever the commission of a crime involves the co-operation of two or more people, theguilt of each is to be determined by the nature of his co-operation, and whenever the co-operationof parties is corrupt they are always accomplices.13See Annot., 53 A.L.R.2d 838, 839 (1957).DICTADICTA NOVEMBER-DECEMBER, 1962ation and cautionary instructions are applicable.14 It is interestingto note that California, champion of the minority view in People v.Coffey,' 5 may recently have switched its approach to this so-calledmajority exception, or at least recognized it and in fact followed itsreasoning.' 6 The result, of course, is the same.Some of the jurisdictions which have found the thief to be anaccomplice of the receiver of stolen goods, in support of what hasbeen called the minority view, have called into use various statuteswhich define principal or accomplice in a somewhat broad sense.'7Such statutes have been directly used in this connection in Ne-braska,' Utah' 9 and in Wyoming.20 In fact, Colorado has just sucha statute, which defines an *accessory as one who aids, abets, assistsor advises and encourages the perpetration of a crime and providesthat such a person is to be deemed a principal and punished ac-cordingly.21  The Colorado Supreme Court uniformly construedthis statute to mean precisely what it says.2 2 Most interesting inthis connection is a 1933 decision which states that if one agrees inadvance to buy stolen property, knowing that the property is to14 E.g., Stephenson v. United States, 211 F.2d 702 (9th Cir. 1954), perhaps the leading case onthis exception, where it was held that the exception should be invoked when the thief and thereceiver enter into an agreement prior to the larceny for one to steal and the other to buy Thedecision reasoned that this previous arrangement amounts to a conspiracy for both the theft andreceipt so that the usual (majority) test for determining an accomplice is met since the thief andreceiver can be prosecuted for both the theft and receipt of stolen property. For a similar resultsee State v. McNight, 129 Mont. 8, 281 P.2d 816 (1955), where the court admitted that Montanahad followed the rule that a thief cannot receive from himself and thus cannot be an accompliceof the receiver of stolen goods, but held that such a rule should be limited to cases where thethief did not participate with the receiver in subsequent acts which pertain to the crime ofreceiving stolen property. Accord, State v. Harmon, 135 Mont. 227, 340 P.2d 128 (1959), wherethe court defined an accomplice as one who knowingly, voluntarily, and with common intent withthe principal offender unites in the commission of a crime.15See note 12 supra.16 See People v. Lima, 25 Cal.2d 573, 154 P.2d 698 (1944).17 E.g., Ing v. United States, 278 F.2d 362 (9th Cir. 1960), which employed an Alaska statutedefining principals as all persons concerned in the commission of a crime, felony or misdemeanorwhether they directly commit an act constituting a crime or aid and abet in its commission, andproviding that all such persons are to be tried and punished as principals.18 Neiden v. State, 120 Neb. 619, 234 N.W. 563 (1931).19 State v. Coroles, 74 Utah 94, 277 Pac. 203 (1929).20 State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954). The court in this case made aninteresting observation when it said the reasoning, that intent is a necessary element of receivingstolen goods and thus there can be no intent to unlawfully receive that which a thief alreadyhas, is insufficient because the criminal intent necessary to make one an accessory to receivinglies not in a criminal intent that the accessory knowingly receive, but rather in criminal intent toaid and abet another in his commission of the crime. In addition, for a combination of the broaddefinition of accomplice approach and the conspiracy exception approach, see Collins v. State,169 Tenn. 393, 88 S.W.2d 452 (1935). where it was reasoned that a thief who delivers stolengoods to another is an aider and abettor of the receiver and thus also guilty of that offense,especially where the thief stole the goods under prearrangement with the defendant for deliveryto him.21 Colo. Rev. Stot. 140-1-12 (1953).22 See Block v. People, 125 Colo. 36, 240 P.2d 512 (1951); Bacino v. People, 104 Colo. 229, 90P.2d 5 (1939).. -I n the traditionS of craftsmanship ..." --- T H. E ALKE NBE RGTHE ONSTRUCTION|11| EAST FoURTe A,.U. • PEAL 3-37 COMPANYNOVEMBER-DEcEMBER, 1962be stolen, he thereby encourages the perpetration of the theft, andif the crime is committed he is deemed and considered a principal.23This situation is merely the reverse of that represented in the princi-pal case, and yet it would certainly seem that the results are quitedifferent, in fact, opposite. Perhaps this is still another departurein Colorado law that requires reconsideration and reconciliationwith the latest approach of the supreme court.The decision in the principal case serves a valuable purposeby clearly resolving the pre-existing conflict in Colorado law, asthe court expressly adopts the holding and reasoning of the Newmancase. As indicated, this may be considered the majority view, butthere is substantial ground for feeling that it is not necessarily themodern view. In this respect, reference should be made once againto the very sound reasoning of those jurisdictions which haveadopted the conspiracy exception to the rule that the thief is notan accomplice of the receiver.24 There can be little doubt that aconspiracy did in fact occur in the principal case. It is submittedthat the supreme court either missed or purposely passed up achance to adopt a better reasoned viewpoint for the case at bar,and yet still reach a decision in favor of the majority rule in general,that is, where no conspiracy exists. The decision seems also torequire speculation as to the place of the Colorado statute definingaccessory. This is of particular interest in view of the Miller case,as previously mentioned. 25 In addition, it is submitted that thearguments tendered by jurisdictions favoring the position that thethief is an accomplice of the receiver contain some extremely inter-esting and compelling reasoning.26 Notwithstanding these considera-tions, at least the law in Colorado is now settled after a good manyyears of quiet but serious conflict.Donald S. Perlmutter23 Miller v. People, 92 Colo. 481, 22 P.2d 626 (1933).24 See Stephenson v. United States, note 14 supra.25 See note 23 supra.26 See People v. Coffey, note 12 supra.COMPLIMENTSOFSYMES BUILDINGDICTA

Criminal Law - Testimony of Accomplices and Codefendants - Receiver of Stolen Goods or Thief

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Criminal Law - Testimony of Accomplices and Codefendants - Receiver of Stolen Goods or Thief

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