Jordan v. State

Hornby, J.,

filed the following dissenting opinion.

The majority of this Court, in affirming the conviction of George Thomas Jordan (the defendant) of receiving a stolen automobile of the value of $1500, based its conclusion on the *50 fact that the trial court was not clearly wrong when it found that the possession by the defendant of the floor mat out of the stolen automobile, plus certain other evidence and inferences from evidence—set forth in detail in the majority opinion—was sufficient to support the finding by the court that the defendant was guilty of receiving stolen property of the value of $100 or upwards.

In addition to the possession of the floor mat, there was evidence that seven hours after it was stolen, the dismantled automobile was found in the woods about fifty or seventy-five feet from the defendant, who had backed his automobile into the woods road and mired it while attempting to turn around. He stated he had found the floor mat at the edge of the woods and had put it under a rear wheel of his automobile to gain traction. His effort failed, but he was so engaged when the police officer drove up, and he came out of the woods and requested the officer to tow his automobile out of the mud. His automobile had not been any further in the woods than the point where it was mired. Other than the mat, no other parts of the stolen vehicle were found near, in or on the automobile of the defendant. When questioned, he denied that he had stolen the dismantled automobile or had “had anything to do with it.” Other than to explain his possession of the mat and his denial of the theft, he refused to say anything, but he did admit previous convictions of larceny and robbery. His flashlight was on his person and a pair of “working” gloves was found under the seat of his automobile. An inspection of his hands and clothing at the police station showed they were clean.

Since the unexplained possession of stolen property is evidence of guilt of larceny [Debinski v. State, 194 Md. 355 , 71 A. 2d 460 (1950)], there is no reason why the possession of stolen property should not also be evidence of receiving such property from another, and cast the burden on the possessor to give a reasonable explanation oFliow he came into the possession thereof, when there is legally sufficient evidence to prove the other three essential elements of the offense of receiving stolen property, but, in this case, I cannot agree that such other evidence was sufficient for that purpose. *51 In this State, the essential elements of the crime of receiving stolen property are: (i) the receiving from another, (ii) of the property stolen from its owner, (iii) knowing it to have been stolen; and (iv) a corrupt or dishonest intent. See Hochheimer Crimes and Criminal Procedure §§ 787-791 (“States Attorneys’” Ed. 1897). See also Code (1957) Art. 27 & 466.

The record, as I read it, shows that the motor vehicle was stolen from its owner [element (ii)]. But proof that the defendant received the stolen property from another [element (i)] is by no means certain, and there is virtually no proof that the defendant knew the floor mat (not to mention the automobile or the parts to which it had been reduced) had been stolen [element (iii)]. Nor is there any proof of a corrupt or dishonest intent [element (iv)], which is a relatively unimportant factor in this case, and will not be considered further herein.

Even though we accept the theory that possession of the floor mat was evidence that the defendant had received it from another [element (i) ], there is no legally sufficient evidence that he knew it had been stolen [element (iii)], which, it has been held is the gist of the offense and must be shown to exist at the time the property was received. Huggins v. People, 135 Ill. 243 , 25 N. E. 1002 (1890). See also Hochheimer op. cit. supra § 790. The defendant claimed that he had found the floor mat at the edge of the woods, but the trier of facts obviously did not believe him. However, be that as it may, it is clear that mere possession without proof of guilty knowledge is not enough to convict the defendant of receiving stolen property.

The courts are by no means in agreement with respect to the effect of possession of recently stolen property in receiving cases. All agree that such possession is a powerful circumstance to be considered, but none hold that mere possession, without other evidence, is sufficient to prove guilty knowledge. See Wertheimer v. State, 201 Ind. 572 , 169 N. E. 40 (1929); Annotation, 68 A. L. R. 187 (1930). Generally, the inference is that the possessor is guilty of larceny, not receiving. See 32 Am. Jur. Larceny § 140 [Pos *52 session of Stolen Goods] ; 45 Am. Jur. Receiving Stolen Property § 18; Wertheimer v. State, supra.

In this State, however, where receiving stolen property is a separate and distinct substantive crime—not merely accessorial—it is not necessary that the defendant have direct or actual knowledge that the property was stolen. It is sufficient if guilty knowledge may be gleaned from circumstantial evidence, or inferred therefrom, to the effect that the receiver believed or could have reasonably suspected from the circumstances that the property was stolen. Henze v. State, 154 Md. 332 , 140 A. 218 (1928). But there must always be some evidence from which a legitimate inference of guilty knowledge may be drawn. Other than his propensity to steal and the nearness of the stripped vehicle to the place where the automobile of the defendant was mired, there was no evidence which could have put him on notice, or have led him to believe, or even suspect, that the floor mat had been stolen. Of course, it has been held that proof of manual possession of stolen property is not necessary to convict and that a receiver is guilty of receiving as soon as he obtains a measure of control or dominion over the custody of the property stolen. Polansky v. State, 205 Md. 362 , 109 A. 2d 52 (1954). Yet in this case there has been no proof that the defendant had any measure of control or dominion whatsoever over the other parts of the stolen vehicle. There was, in fact, no proof that he had been further in the woods than where his automobile was mired. He admitted seeing the back of the stolen vehicle but there was no proof that he knew the removed parts were in the woods. And, which is more important, there was not a scintilla of evidence to prove or even suggest that the defendant knew the floor mat and other parts had been stolen.

On the issue of guilty knowledge, the majority, in their opinion, conclude that the defendant received the completely dismantled automobile at a time when he knew, or had reason to know, the property was stolen, and hold that “the facts and circumstances proved” were sufficient to draw, if they do not impel, an inference of guilty knowledge, but nowhere in the opinion is it pointed out how or when or under what *53 circumstances the defendant had acquired any knowledge whatsoever that the floor mat or other parts had been stolen. And, so far as I can find, there is no evidence in the record from which a legally sufficient inference may be drawn that the receiver believed or could have reasonably suspected from the circumstances that the floor mat was stolen when it was not even shown—other than by the inference which arose when he gave an illogical explanation as to how he had acquired possession of the floor mat—that the defendant was the receiver instead of the thief. But the right to infer receiving from an unreasonable explanation of possession does not support a further inference that the possessor also received the stolen property “knowing it to have been stolen.” The “third” element must be proved by other direct or circumstantial evidence or legitimate inferences therefrom.

The lack of evidence legally sufficient to prove guilty knowledge compels me to believe that the only legitimate inference which may be drawn from such evidence as the record contains, incredible as it may seem, is that the presence of the defendant at the place the police found him and his mired automobile was no more than a coincidence. For this reason, I am convinced that the judgment should have been reversed.