Receiving Within Theft Law

Receiving Within Theft Law

Receiving stolen property began as a crime of its own, separate from the theft that preceded it. At common law it was one of the offenses against property, listed alongside larceny, embezzlement, false pretenses, and robbery.¹ Under the common law and the early English statutes, a person who received goods knowing they were stolen was punishable, though not always on the same theory. One statute made receiving a substantive offense in itself, while another declared the receiver an accessory after the fact to the original larceny, which made the receiver a felon.² Most American codes took the separate-offense position, and most grade the crime as a felony or a misdemeanor according to the value or the kind of property received.³ In its usual modern statement, the common-law offense has five elements.⁴

The fourth element fixes who can commit the offense at all. A thief obtains property by taking it from the owner, so no one hands it over, and the thief's liability is measured by how the taking was done. A receiver obtains the property from someone who already holds it through an offense, so the receiver's liability is measured by what the receiver did with the goods and what the receiver knew while doing it. The receiver did not take the property from the owner. The receiver's wrong lies in accepting the goods from the thief and so helping to keep them from the owner. That difference in kind explains why the fourth element and the knowledge element carry most of the weight in receiving cases: together they confine the offense to people who accepted goods that someone else had already obtained by an offense, aware of what the goods were.

Exam facts often describe the burglar and the buyer in a single narrative, and the costly mistake is running the thief through the receiving elements. The sale is the event that opens the receiving analysis, and it opens that analysis for the person who took the goods from the seller. Each person in the story gets the analysis that fits how the goods reached that person's hands.

The Model Penal Code reaches the same conduct through a different structure. Section 223.1(1) provides that conduct denominated theft in the Article constitutes a single offense, and that an accusation of theft may be supported by evidence that it was committed in any manner that would be theft under the Article, even when the indictment or information specified a different manner.⁵ Receiving is one of those manners. The Code states its distinctive elements in § 223.6 and treats larceny, embezzlement, false pretenses, and receiving as ways of committing one consolidated crime.⁶ The contrast with the older law is therefore sharp: the common law treated the receiver as the author of a distinct offense, often a misdemeanor, while the Code treats the receiver as one kind of thief.

Consolidation answers a pleading problem. When larceny, embezzlement, false pretenses, and receiving were separate crimes, a prosecutor who charged one and proved another could lose a case against a defendant who had plainly dealt wrongfully with someone else's property. In Crabb v. Zerbst the Fifth Circuit described modern theft statutes that broaden the common-law offense as meant to avoid the pitfalls of technical pleading, so that a defendant could not escape conviction for one offense by proving conduct that differed from it by a hair's breadth.⁷ The Code reasons the same way. It treats thieves as equally culpable and the harm as equally serious however the property was acquired, so the manner of acquisition becomes a matter of proof and stops being a trap in the charging document.⁸

Consolidation has a limit, because a charge that differs too much from the proof can leave the defendant without notice of the case to be met. The last clause of § 223.1(1) therefore preserves the court's power to grant a continuance or other relief when the defense would be prejudiced by lack of fair notice or by surprise.⁹ A defendant indicted for stealing who learns at trial that the proof will show knowing receipt can ask for time to prepare, but cannot demand acquittal merely because the label differs.

With the two formulations side by side, the Code's version of receiving can be laid out in the order this chapter teaches it, with each common-law idea attached to the element it becomes.

The last section of this chapter runs these elements as one sequence on a fact pattern. The act element comes first, because every receiving problem begins by asking what the defendant did with the goods.