Commonwealth v. Light

Rice, P. J.,

dissenting:

The instruction complained of in the first assignment of error if intended as an abstract statement of the essentials tó a conviction of one accused of the crime of receiving stolen goods, knowing them to have been stolen would be subject to. criticism as is well shown in the opinion of Judge Porter, but it was evidently not so intended; it was rather a statement of facts in dispute which the jury would have to find before they could convict the defendant in this particular case. The instruction is to be viewed and its effect determined, in the light of the fact sworn to by the defendant himself, that the turkeys were conveyed in the defendant’s buggy, to the place where they were sold, and that he drove, and the other undisputed fact that he was present when they were sold. If there were any dispute as to these facts, the instruction might be criticised, but viewing it in the light of these undisputed facts, it does not seem to me that it was either inadequate or misleading. There is no room for conjecture even, that the corrupt bargain, if made, was unexecuted, or that the turkeys were not in the defendant’s actual possession, and control, when he drove the wagon in which they were, to the place where the corrupt bargain was consummated by the sale of the stolen property.

In the case of The' Queen v. Wiley, the conclusion of the majority of the judges that the conviction was wrong, was based largely upon the point thus stated by Lord Coleridge : “ Until some bargain had been concluded, he ” (the receiver) “ never intended to take charge of it, nor in fact could he have taken possession. This therefore is not the case of a joint constructive possession; nor did the thieves intend to admit him to any actual possession except upon a bargain which was never made.” Here however the verdict of the jury has established the fact that the bargain was made, and this being so, the defendant must be deemed in possession pursuant to it when he conveyed the stolen property to the place where it was disposed of. In short, the facts stated in the instruction taken in connection with, the facts admitted by the defendant made out a case, which in my opinion would warrant a jury in finding the defendant guilty of the crime of receiving.

This is the entire effect of the instruction, and thus viewed, I do not think it was erroneous.

Smith, J., concurs in this dissent.