Opinion
Argued January 18, 1924
Decided February 26, 1924
Joab H. Banton, District Attorney ( Felix C. Benvenga and Michael Ford of counsel), for appellant.
Harry Kopp for respondent.
An automobile was stolen in the county of New York. It was sold a few days later at a garage in the county of Kings. The defendant, having made the sale, should have explained the origin of his possession ( People v. Galbo, 218 N.Y. 283, 290). The explanation which he gave was false. An indictment found against him in the county of New York is in two counts, one of them for larceny, and the other for receiving stolen property. The jury, having received the case on both counts, acquitted the defendant on the first, and convicted him on the second. The Appellate Division reversed upon the ground that the only evidence of the offense of criminally receiving was evidence of an offense committed in the county of Kings.
Larceny and criminally receiving stolen property are distinct and independent crimes ( People v. Zimmer, 174 App. Div. 470; affd., 220 N.Y. 597). The defendant has been found to be innocent of the larceny, which was committed in New York (cf. R. v. Langmead, 9 Cox C.C. 464; People v. Galbo, supra). With this finding, we see no basis for the conclusion that his possession had a beginning in any county except Kings. To hold otherwise would mean that receiving in New York might be inferred from possession by the receiver in Philadelphia or Chicago. We know that the defendant had possession in the county of the sale. If participation in the larceny be excluded, we have no reason to believe that he had possession anywhere else. Conjecture has supplanted inference in the finding of the verdict.
A ruling that evidence of possession in Kings is not equivalent, without more to evidence of earlier possession in New York, does not mean that evidence of earlier possession in New York would overcome the effect of continued possession in Kings. A person who steals property in one county and carries it into another may be prosecuted in either ( Haskins v. People, 16 N.Y. 344, 348, 349). The theory is that "the legal possession of the goods remains in the true owner, and every moment's continuation of the trespass and felony amounts to a new caption and asportation" ( Haskins v. People, supra). There has been a corresponding extension of jurisdiction of the offense of criminally receiving. The Revised Statutes declared the rule that the receiver of stolen goods "may be indicted, tried and convicted in any county where he received or had such property, notwithstanding such theft was committed in another county" (2 R.S. 726, § 43). The revisers' note is that this provision was adopted "in analogy to the rule which allows a prosecution for theft in any county where the stolen goods shall be carried" ( Wills v. People, 3 Parker's N.Y. Criminal Reports, 473, 501). A like jurisdiction is preserved, though in different words, by the statute now in force (Penal Law, § 1308). One who "buys or receives any stolen property" knowing it to have been stolen, is guilty of a crime, but so also is one who, with like knowledge, "conceals, withholds, or aids in concealing or withholding."
The defendant has not been prosecuted in the county of the crime ( People v. Zimmer, supra).
The order should be affirmed.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Order affirmed.