Caseflicks

Court of Criminal Appeals of Oklahoma • 1964

Booth v. State

398 P.2d 863 | 1964 OK CR 124 | 1964 Okla. Crim. App. LEXIS 247

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Takeaway

In short, this case treats recovery of stolen property by police as ending its stolen status, so a defendant who later believes he is receiving it cannot be convicted even of an attempt under Oklahoma’s then-existing legal-impossibility rule.

Background

John Fletcher Booth, Jr., was charged with receiving stolen property after police used a recovered cashmere coat in a sting operation. Charley Stanford, a thief, had taken the coat from a parked car. Police arrested Stanford while he was wearing it, recovered the coat, confirmed its ownership with the victim, and then returned with Stanford to his residence. Officers concealed themselves there and watched Stanford offer the coat to Booth.

According to the officers, Stanford told Booth the coat was “hot,” meaning stolen. Booth allegedly replied that he knew how to handle such things, took the coat, placed it in his car, and later was arrested after police obtained a search warrant. Because the coat had already been recovered by police, the trial court instructed the jury to consider only the lesser offense of attempted receipt of stolen property. The jury convicted Booth of that attempt and imposed two years’ imprisonment and a $150 fine. Booth appealed.

Issues

Issue #1

Whether the coat remained “stolen property” after police recovered it, identified it with the owner, and used it to entrap Booth.

Holding

No. Once police recovered the coat for its owner, it lost its character as stolen property; Booth therefore could not have committed the completed offense of receiving stolen property.

Reasoning

The court followed the general rule that property remains stolen only until it is recovered by the owner or by someone acting for the owner. Here, police seized the coat from Stanford, brought the owner to identify it, and retained it as evidence before arranging the controlled delivery to Booth.

Because the police had actual possession of the coat on the owner’s behalf, Stanford’s later delivery of it to Booth was not a delivery of stolen property. The fact that the police used Stanford as an instrumentality to expose a suspected receiver did not restore the coat’s stolen character.

The court relied on decisions stating that a person cannot be convicted of receiving stolen goods when the goods have been recovered by the owner or the owner’s agent before the purported receipt. Thus, the evidence could not support Booth’s original charge of receiving stolen property.

Issue #2

Whether Booth could nevertheless be convicted of attempting to receive stolen property when he believed the recovered coat was stolen.

Holding

No. The recovery of the coat created a legal impossibility: even if Booth did everything he intended to do, no completed crime of receiving stolen property could have occurred.

Reasoning

Oklahoma precedent provided that an accused cannot be convicted of an attempt unless the intended completed conduct would constitute a crime if successfully carried out. Since the coat was no longer stolen property, Booth could not knowingly receive stolen property as the statute required.

The court distinguished factual impossibility from legal impossibility. Factual impossibility exists when an unknown factual circumstance prevents completion of an otherwise criminal offense, such as attempting to steal from an empty pocket. Legal impossibility exists when the intended acts, even if fully completed, would not violate the criminal law.

Receiving goods believed to be stolen but no longer legally classified as stolen falls within legal impossibility. Booth may have had a culpable state of mind and may have believed he was dealing in stolen property, but criminal intent alone was not enough without an act that the law prohibited.

The court rejected California authority that had allowed attempt liability in comparable circumstances and instead adopted the New York approach of People v. Jaffe. It reasoned that if the completed series of intended acts is not criminal, an incomplete or attempted version of those same acts cannot be criminal either.