State v. Webber

¶1 I concur in the result but not in all that is said in the opinion. I particularly disagree with the statement that the evidence clearly shows that the defendant was an accomplice, and therefore a principal to the actual theft by Stone, which is a matter not necessary to the decision. All that it is necessary to say on that point is that even if the evidence did so indicate, the prosecution could properly, under the authorities cited and the facts of this case, elect to prosecute him for the clearly indicated crime of receiving stolen property. Defendant’s argument is that the larcener cannot physically receive from himself the thing which he has stolen; but that argument logically applies only to a larcener who participated im the actual asportation and therefore already has the actual physical possession. Under the facts of this ease it is a legal fiction that Webber, if a party to the larceny, already had possession of the thing stolen; and in my opinion it is illogical to carry that fiction so far as to base upon it the further fiction that it is impossible for him ever to receive the actual physical possession, as distinguished from his constructive *302 possession as an accomplice, so as to be guilty of receiving stolen property.