dissenting. This court continues to expand the possibilities of conviction for multiple offenses growing out of one incident. The car the appellant was driving at the time of this fatal accident had been stolen five days earlier. For the purpose of this dissent, I will assume that the appellant stole the vehicle. However, he was charged with theft by receiving. Apparently that charge was easier to prove than it would have been to prove that he actually stole the vehicle. Nevertheless he was convicted of first degree murder in causing the death of a pedestrian with his automobile while fleeing from the commission of a felony. The information charged the appellant with fleeing, on foot, pursuant to Ark. Code Ann. § 5-54-125(1987). Certainly “on foot” and “in an automobile” are two different modes of travel. Nowhere in the charge does it allege that the appellant was fleeing after having committed a felony. The majority broadens the meaning of the statute to make it a continuing (day by day or hour by hour or perhaps minute by minute) felony to have in one’s possession stolen property. Under this theory a person could, for the same offense, be sentenced to as many felonies as a prosecutor desired.
Five days before the fatal accident, the owner’s vehicle had been stolen. The car was subsequently observed being driven by the appellant and he was then chased by a police vehicle. Apparently the reason the officer was chasing him was because the police knew the automobile had been stolen five days earlier. There is no doubt that the appellant was attempting to avoid arrest at the time'this fatal accident occurred. No one suggests that the pursuing officers thought the car had just been stolen and that the appellant was fleeing the scene from where he had stolen the vehicle. It was only stolen one time and that was five days before this unfortunate tragedy. I can find no evidence in the record to indicate exactly when the appellant came into possession of this vehicle.
Theft by receiving is defined in Ark. Code Ann. § 5-36-106(a) (1987): “A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.” The appellant received or stole the property at only one time so far as the record discloses.
The crime of receiving stolen property is committed where and when the property is received. Thompson v. State, 207 Ark. 680, 182 S.W.2d 386 (1944). The majority relies on the case of State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978), for the proposition that the felony of theft by receiving continues as long as the person receiving the property has it in their possession. Reeves does not support that position. Reeves had challenged the statute of limitations for filing a charge of theft by receiving. The Reeves opinion stated: “The question before us then is: when does the statute of limitations begin to run on the crime of theft by receiving . . . ?” The opinion held: “[f]or the purposes of [Ark. Code Ann. § 5-36-106(a)], an offense is committed either when every element of the offense occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant’s complicity therein is terminated.” Under the interpretation given by the majority, the statute of limitations would never run on offenses of theft by receiving as long as the defendant remained in possession of the property. If, for example, a person received a load of stolen brick and used it in the construction of a house, he could be prosecuted for theft by receiving as long as he retained possession of the house.
The important point, however, is that the Reeves decision that theft by receiving is a continuing offense surely was never intended to “bootstrap” the offense of manslaughter into a conviction for first degree murder when the appellant obviously had been in possession of the property for several days. Certainly it cannot reasonably be asserted that the death occurred in the course of, or in furtherance of, or in flight from the crime of theft by receiving.
No person alive could have imagined that a pedestrian almost a block from the traffic light would be killed when the appellant attempted to evade striking other automobiles by driving into a parking lot at a fast rate of speed. Certainly the facts of this situation do not fit the criteria of acts which constitute first degree murder. Fleeing “on foot” could not possibly have been the felony underlying the first degree murder count because the death had already occurred before the “flight” started. If, on the other hand, the underlying felony was the theft of the automobile or receipt of the stolen property, then it was not in “immediate flight therefrom” within the meaning of the law.
It is my opinion that the appellant could lawfully have been found guilty of manslaughter and theft of property (or theft by receiving) and fleeing. However, he should not have been convicted of first degree murder.