State v. Kaplan

A careful consideration of the Act of 1702, in its relation to our law and the English law as it then was, convinces me that in punishing one who conceals a theft, or one who knowingly receives stolen goods, "as he or they that commit the theft," the Act referred to the concealment of a particular theft perpetrated by a particular person, and to the receiving of any goods which had been obtained by such particular theft; the concealer or receiver became a participant in the particular crime of the thief, and subject to the same penalty. The whole theory of this Act, as well as that of the English statutes subsequently enacted, bases the guilt of the receiver, not upon a suppositions theft committed by him at the time of receiving the goods, but upon his participation in a theft already committed; therefore he is punished "as he that commits the theft."

In 1702 and thereafter until 1830, the main punishment of theft consisted in the forfeiture of treble the value of the goods stolen, and this forfeiture was enforced (until about 1821) by selling the thief into slavery. So far as the main punishment was concerned, it was practically immaterial whether the receiver was punished as for ten thefts of ten dollars each, or one theft of one hundred dollars. In 1830 the main punishment of theft was changed to imprisonment in jail and state prison, and arbitrarily graded in accordance with certain maximum values of the property stolen. But this did not alter the law of 1702, so far as it defined the offense of receiving stolen goods. It is conceded by all that the meaning of that law is now substantially the same as when it was first enacted. It may be altered by the legislature if deemed desirable; I do not think the change should be made by judicial construction.

The trial court, however, did not err in refusing to grant a new trial for verdict against evidence.

The jury might, not unreasonably, have found from the testimony and inferences they might properly draw, the following facts: The prisoner, Cohen and Fontaine, agreed between themselves to steal a quantity of copper; the theft to be accomplished by the removal, from the factory of the Seymour Manufacturing Company, of a few ingots at a time to a place of concealment and, after a sufficient quantity had thus been accumulated, by carrying the whole away to be sold in bulk; Fontaine removed the copper at different times to his cellar near the factory. When thirty ingots had been so obtained, the prisoner, Cohen and Fontaine took all the copper from the cellar and put it in a wagon to be carried away and sold; the prisoner and Cohen sold the copper so carried off; each shared in the proceeds of the sale; the acts of each were in pursuance and execution of the agreement by all to steal this copper.

Upon this state of facts the law is so that the act of each in the prosecution of the agreement to steal, is the act of all.State v. Allen, 47 Conn. 121, 138. Each taking and carrying away of a portion of the copper by Fontaine was a theft by all of that portion. I think the taking and carrying away of the thirty ingots was also a theft by all of the whole. It must be conceded upon the state of facts assumed, that the prisoner as well as each of his confederates took and carried away the thirty ingots against the will of the owner, with intent to deprive him of that property. But the counsel for the prisoner urges that this is not theft of the whole, because the property, being in the possession of the thief as the result of prior thefts, there was no trespass in the appropriation of the whole, and that without trespass there can be no theft. This saying is common, but the more accurate statement, as found in Hale, Hawkins and the early cases is, that without trespass there is no felony. Theft could not be prosecuted and punished as a felony, without a trespass, which was an essential element of every felony. In England, before the innovations of the Norman court, theft was closely associated with the notion of a forcible invasion of the actual possession of the owner. Cattle constituted the main part of personal property, and gave the name to that kind of property. The ideas of ownership and possession were vague. Cattle-lifting was the principal mode of committing theft, and so the crime was commonly in fact, although not of necessity, accompanied by force. Bracton wrote before theft was fully established as a felony to be prosecuted in the King's Court; he defined theft "secundum leges," that is, according to law books or compilations that endeavored to state the laws of Edward, but his definition was given in the language and influenced by the spirit of the Roman law. This clearly appears in comparing the passage in Bracton (Lib. iii, C. 32) with Just. iv. Tit. I, par. 1-10. Bracton's "contrectatio fraudulenta" was broader than a mere "taking;" his "invito illo domino" involved more than a breach of actual possession; and he emphasizes the "animo furandi" as the essence of the wrong:"sine animo furandi non committitur," following Justinian (supra, par. 7) whose "sine affectu furandi non committitur" is taken from Gai. iii, par. 197, "sine dolo malo non committitur." This definition has always been regarded as expressing the true conception of theft. Subsequently, when the law provided that the crime could only be prosecuted as a felony, the trespass necessary to a felony became necessary to its prosecution. And the use of "latrocineum" rather than "furtum" or its equivalent, in the designation of the new felony, indicates the dominant idea of a trespass consisting of a forceful invasion of actual possession. But in course of time it became evident that such a limitation of the real scope of the crime of theft was practically untenable.

As the majority of the court have decided this case on a wholly different ground, and have, therefore, deemed it unnecessary to consider the question, I wish to suggest my reasons for affirming the action of the trial court, as briefly as possible, and I do not go into a detailed discussion of the cases which demonstrate the modification of the early theory of trespass. The theory that theft cannot be committed in respect to property in the actual possession of the thief, was found impracticable, and abandoned. This is fully illustrated in the cases that find a trespass in picking up lost property; a trespass in the fraudulent use of property which first comes into one's possession by lawful bailment, or where actual possession is acquired by fraud; a trespass in the continued or each new fraudulent dealing with property in one's possession by means of a former theft. This modification of the early notion of trespass in reference to theft is practically a modification of the theory that theft cannot be committed in respect to any property in one's actual possession.

When theft was made a felony, the forcible invasion of possession which was the usual attendant of the crime, but not necessarily of its essence, as is indicated in the definition of Bracton, became an essential ingredient of the crime, not because it was theft, but because it was felony; and for this reason the offense could not be committed by a possessor. In process of time, as personal property increased in importance and variety, it became clear that theft was in fact frequently committed by a possessor, and must be punished; and so certain acts of appropriation which violated no actual possession of the owner were punished as theft. It is impracticable and is not material to trace, through centuries of unpublished cases, how the crime of theft forced a recognition of its real nature in spite of the limitations of procedure involved in making it a felony. It is still true that theft is ordinarily attended by a breach of actual possession, but it is also true that it may, not infrequently, be committed by an actual possessor of another's property. If such possession result from contract, an appropriation may be a mere breach of trust, or may be punishable as theft only under the statutes of embezzlement; but if possession is obtained from the owner through fraud or without the consent implied in contract, an appropriation may have all the characteristics of theft, and then the earmark of a felony which consists in trespass is supplied through the theory of constructive possession and implied taking.

Theft is complete with a fraudulent dealing coupled with the necessary criminal intent; a final disposition of the property may be evidence of theft but is not essential to its commission. Theft, therefore, may be in a certain way a continuing crime, that is, property once taken into the possession of the thief may be the subject of further fraudulent dealing and so of repeated theft. Whenever there is a union at one time of a taking or fraudulent dealing with the property of another against his will, with an intent to deprive him of that property, theft may he committed. And for this reason, if a thief takes several articles and removes them a short distance for convenience in carrying away, a theft is committed as to each article as soon as it is moved at all, and a theft is also complete as to the whole when they are carried off; and so long as the property remains in the possession of the thief, a new theft may be committed with each new fraudulent dealing, united with the other elements of the crime. Theoretically this may be true of each moment of continued possession, yet practically such continuous theft remains in every respect one and the same crime; but if there be some new fraudulent dealing, such as the conveyance of the whole or a portion of the property to another jurisdiction, or the putting together of a number of things for the purpose of disposing of the whole, united with the necessary criminal intent, there is a new theft as to the particular property so dealt with. The State may then select for prosecution such act of theft as may best serve the ends of justice. In any case of theft there must be some act of fraudulent dealing or taking or implied taking, i.e. a separation or disposition of particular property by moving, controlling, concealing, or otherwise, for the purpose and with the intent of depriving the owner of the same against his will. It is this union of act and intent in respect to a particular thing in the actual possession of the thief, as well as the difference in the mode of obtaining possession, that distinguishes such theft from the very similar crime of embezzlement, which latter ordinarily involves an actual and final disposition of the property.

The prisoner and his confederates, therefore, when they carried off the thirty ingots of copper, were guilty of a theft of the whole, notwithstanding they were also guilty of a theft of each parcel at the time it was first taken from its owner. Of course they should not be punished both for the separate thefts and the final theft, to which the prior ones in a way contributed; but the option as to the prosecution rested with the State's Attorney and not with the prisoner.

For these reasons I think there is no error in the judgment of the Superior Court.