(dissenting). I dissent and vote to reverse the judgment of conviction. There was no proof to justify the defendant’s conviction of the crime of criminally receiving stolen property knowing the same to have been stolen. The trial court should have granted defendant’s motion to dismiss that count of the indictment at the close of the People’s case.
The record is barren of any evidence that the property, if stolen, had been taken by some one other than this defendant; nor are there any facts from which such an inference reasonably might be drawn.
Recent and exclusive possession of the fruits of a larceny, if unexplained or falsely explained, will justify the inference that the possessor is the thief. “ But as soon as evidence is offered that the theft was committed by some one else, the inference changes, and he becomes a receiver of stolen goods.” (People v. Galbo, 218 N. Y. 283, 290, 291.) (See, also, Goldstein v. People, 82 id. 231, 233; Stover v. People, 56 id. 315.) In the absence of proof that some other person or persons had stolen the property, there could be no conviction of criminally receiving. There is not a scintilla of evidence that another had stolen the packing case and that defendant had received it from a thief. Nor was there any evidence of other similar transactions which might support a conclusion that this defendant was a criminal receiver of stolen goods.
While it is not necessary in a receiving case to identify the thief (People v. Marino, 271 N. Y. 317), there must be evidence upon which to base a conclusion that some one other than the receiver
*692cormnitted the theft to justify the inference that the one in possession is a criminal receiver of stolen goods. (People v. Galbo, supra; Goldstein v. People, supra; People v. Wilson, 151 N. Y. 403, 408; 2 Wharton’s Criminal Law [12th ed.], p. 1551.) In Wharton on Criminal Law the pertinent rule is stated as follows:
“ § 1234. * * * As an elementary principle, if larceny by the defendant be proved, * * * the charge of receiving falls, because the offenses are substantially distinct, and because there can be no guilty reception unless there be a prior stealing by another. * * * ” (Italics mine.)
It is true that the defendant stated to the police officer that he had found the packing case in the vicinity of the place where he had been arrested. It is argued, accordingly, that the jury may have believed that defendant was not the thief but that he had received it from a thief knowing it to be stolen property. However, if the defendant found the property, he was neither a thief nor a receiver. If he did not find it, then the presumption in this case must only be that he had stolen it.
Respondent relies upon Reg. v. McMahon (13 Cox C. C. 275 [1875]) to sustain this judgment of conviction. An analysis of that case shows that the facts there are essentially different from those in the case before us. There the defendant, who was a former employee of complainant, was found in possession of money and. property stolen the night before. The only servant in the house at the time of the theft was murdered. When apprehended, the defendant stated: “ The money in my bundle was sent to me by my friends to buy clothes.” Subsequently she made another statement in which she said that she had found the money in the bundle on the road and that her first explanation that “ friends had sent it ” to her was untrue. In these circumstances, of course, the jury might have believed her first statement to the effect that she had received some of the stolen property from friends, and at the same time they might have disbelieved that portion of her statement in which she claimed that she had received the property innocently. In the case at bar there was no statement by defendant that the property was given to him by another.
In the excerpt from the McMahon case set forth in the prevailing opinion the statement appears: “ There was a possibility that it [the theft] was committed by some other person.” Partly upon this premise, the justice there reached the conclusion that the theft was committed by some other person. In this State we are precluded from following such a rule. Under our statute, the guilt of the defendant must be established beyond a reasonable doubt (Code Crim. Proc. § 389); that requirement extends to every element of the case which the People are called upon to establish. *693(Chamberlayne “ The Modern Law of Evidence,” § 996a; People v. Trimarchi, 231 N. Y. 263, 267; People v. Razezicz, 206 id. 249; People v. Bonifacio, 190 id. 150; People v. Place, 157 id. 584.) An essential element of the crime of receiving stolen goods is that the theft must have been committed by some one other than the receiver. (People v. Galbo, supra.) A mere possibility that some one other than Artie Berger may have stolen the packing case is obviously insufficient.
In the McMahon case the comments of some of the other judges which appear in the official report of this case shed considerable light on some of the questions presented here. For example, Dowse, B., stated (p. 278): “ she [the prisoner] is as well off in this view of the case as she would have been in the other; she has got no longer sentence.” And upon the question as to whether defendant may as well be convicted of receiving if only guilty of petit larceny, the observations of Chief Justice Whiteside, who refused to join in the decision of the majority, are pertinent. He said (at p. 281): “ I think the two confessions relied on are consistent with the crime of theft, and not at all satisfactory evidence of the crime of receiving. I feel much difficulty in this matter, for I think no third person was shown to be connected with the crime. If a jury will convict a man without evidence, and against the direction of the court, can it be said that a judge is bound to accept and receive such a verdict against all reason, evidence, and justice? I cannot assent to the doctrine that the life or liberty of the subject is to depend on anything else, but the principle of justice.”
In the case at bar, conceivably a jury might have adjudged defendant guilty of the crime of petit larceny. He was not convicted of that crime but of a much more serious one of which there was insufficient evidence of his guilt. Criminally receiving stolen property, by statute is a felony punishable by imprisonment for not more than ten years, or by a fine of not more than $1,000, or by both such fine and imprisonment (Penal Law, § 1308, amd. by Laws of 1940, chap. 443), whereas petit larceny is merely a misdemeanor. They are separate, distinct and independent offenses. (People v. Zimmer, 174 App. Div. 470; affd., 220 N. Y. 597; People v. Brien, 53 Hun, 496.) Assuming defendant was guilty of the misdemeanor charge, the improper conviction of the felony charge for which he has been committed to State’s prison for not less than one year nor more than two years, obviously was prejudicial, and was not a mere technicality.
For all the foregoing reasons, this judgment of conviction was not warranted and it should not be permitted to stand.
Untermyer, J., concurs. >
Judgment affirmed. •