State v. Seay , 3 Stew. 123 ( 1830 )

By JUDGE COLLIER.

The offence charged, and the form of the indictment, very materially suggest these questions for our examination.

1st. Can one who has committed a larceny in a sister State, and brought with him the property stolen into this, be punished under our laws?

2nd. If the facts supposed in the first question constitute an offence, is the indictment sufficient in point of law?

First. That an individual who has committed a Jar-ccny or other offence within the jurisdiction of this State,, cannot for such offence be punished hero upon common law principles, is a proposition to which we are prepared to yield our assent. In the case of the State v. Brown ^a this point was decided. In that case the prisoner was indieted for horse stealing; the proof shewed that the horse was stolen in the Territory south of tho Ohio; upon which Judge Ashe remarked, “if the accused were tried and condemned here, or tried and acquitted here, would the sentence of this Court be pleadahle in bar to an indictment preferred against him in the Territory south of tho Ohio. I think it would not, because the offence against the laws of this State and the offence against the laws of that country are distinct, and satisfaction made for the of-fence committed against this State, is no satisfaction for the offence committed against the laws there.” The learned Judge then continues to remark upon the quantum of punishment and tho variety of modes of its infliction which must be suffered for the same offence if a contrary doctrine was recognised, and concludes, that “it is against natural justice, and therefore” says he, “I cannot believe it to be law.”

The same question came before the Supreme Court of New York in the case of the People v. Gardner, and in that of the People v. Schenck. ^b In which cases, the Court remarked, that when tho taking is out of the State, the of-fence does not continue and accompanj-’ the possession of the thing stolen, as it does in the case where a thing is stolen in one county and the thief is found with the property in another; and that the accused could only be considered as flying from the justice of the State where the offence was committed.

A doctrine the reverse of that held in North Carolina and New York is maintained in Massachusetts and Con-necticul, vide Commonwealth v. Cullins^c and the State v. Ellis. ^d These authorities are referred to for the pur-Pose °f shewing what was the understanding of the law, apart from legislative enactment But we have a statute which expressly denounces as a fit subject of punishment, any individual who brings into this State property stolen in another jurisdiction, which is in these words. “Be it enacted, &c., that any person or persons who shall steal or otherwise feloniously take any horse, or other goods and chattels, from any person, in any place out of this territory, and shall afterwards have the same or any part of such goods and chattels in his or thoir possession within this territory, may be indicted for horse stealing or other larceny, in whatever county he or they may be so found with such horse or other goods and chattels as aforesaid.”

it is manifest from the reading of this act, that it to embrace the offence with which the accused is charged, unless it be rendered nugatory by constitutional inhibition, or narrowed in its operation by the application of the rules by which legislative acts are interpreted.

The affirmative of the first branch of the qualification of the proposition, is predicated upon the hypothesis, that the offence which the statute proposes to punish, was legally punishable by the Courts of Georgia, and that to permit the accused to be punished here, would be to inflict punishment twice for the same offence, in contravention of tlie amendments to the Constitution of the United States. ^a This idea we believe is not well founded; the statute docs not propose to punish for a larceny committed against the dignity of another sovereignty, but for the bringing into this State feloniously, the property stolen without its limits, whereby our citizens may be induced to become purchasers of the same, and thus he deprived of their substance; when it shall bo reclaimed by the rightful owner. Considered in this point of view, the main inducement of the Legislature to the enactment of the statute will appear quite rational and expedient. No objection founded upon constitutional grounds will then suggest itself to the jurisdiction in which the prisoner was tried, and all objections to the statute, as conflicting with the restraints imposed by the constitution, will appear to bo sufficiently answered. Our powers do not authorise us to institute an inquiry into the policy of tho law; that was a fit topic for the consideration of the department, which enacted it. Our province is to inquire if it be reconcilable with the boundaries which the constitution has set to legislative action, this inquiry wo have already made.

With regard to the second branch of the qualification we will remark, if the offence of which the prisoner is found guilty was capitally punished, we should incline to the opinion that he could not receive the judgment of death. The statute it will bo observed expresses “horses and other goods and chattels.” For the larceny of horses in contravention of the act. it would be competent, to inflict any punishment authorised by law, however exorbitant, but for “other goods and chattels,” ih favorem vita;, tbe punishment of death could not be awarded. On thin point, Blackstone in his Commentaries ^a recites a caso strikingly analngous, in which it was held that the general words of a statute succeeding a specific description of an object of larceny, were inoperative. These are the au~ thors words: “by the statute 14, George 2, chapter 6, stealing sheep or other cattle was made felony without beneir; of clergy, but these general words “or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to mere sheep.” This punctilious strictness in the construction of penal statutes has never, so far as our examination into authority informs us,been extended to misdemeanors, and unless we could discover that inconvenience or injustice would be likely to result to one accused, by limiting its application to capital cases, we arc not disposed to extend -it to offences of a lower grade. No inconvenience can result by giving effect to the general ■words, for by referring to the common law, it may be ascertained what “goods and chattels” are the objects of larceny.

2nd We are induced to question the legal sufficiency of the countin the indictment, on which the prisoner is found guilty. It charges substantially, that the prisoner did feloniously steal, take and carry away at the city of Augusta, in the county of Richmond, in the State of Georgia, and out of the State of Alabama, one carriage, &c.? and that on the thirteenth of April, in the year of our Lord one thousand eight hundred and thirty, he had the same in the possession of him the said Aquilla Seay, to wit: on the clay and year last aforesaid, to wit: in the county of Mobile and State of Alabama aforesaid, contrary to the form of the statute in such cases made and provided. Whether the possession of the prisoner in the county of Mobile was felonious, is a fact which the indictment does not allege. The asportation in Georgia may have been such as to render him liable to a conviction for a larceny there, and the possession in Mobile be rightful. The owner of the stolen property, before it was brought within the limits of this State, may have made a transfer of his right to the prisoner, or consented that he should carry it to Mobile. But regardless of fact, the Court must, in obedience to a well settled rule, make every presumption in favor of the prisoner, which the indictment will authorise, and this too even after verdict.^b

Indictments can not be aided by intendment, but must positively and explicitlystatc what the prisoner is called upon to answer, and the charge as alleged must be an against the laws.^a The learned editor of Bacon’s Abridgment remarks, that “every indictment ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnan ey.” ^b And the author says “it is laid down as a good ge neral rule, that in indictments as well as appeals, the spe cial manner of the whole fact ought to be set forth with such certainty that it may judicially appear to the Court that the indictors have not gone upon insufficient premises.” ^c “Neither is it always sufficient to pursue words of a statute, unless in so doing you fully, directly and expressly allege the matter wherein the offence con sists, without the least uncertainty or ambiguity. ^d Nor will the averment of contra formam statuii aid an indict ment, defective in not charging with sufficient precision an offence legally punishable.^e The rule dedueible from these authorities is, that the indictment must contain all the essentials to constitute the offence, explicitly charged, and that they must not bo left to inference, and hence it is manifest, that unless the prisoner could be punished for having in his possession feloniously or otherwise at Mobile, the property he had stolen in Georgia, he cannot be punished on the finding of the jury.

Again, the statute must be considered as introducing a new offence into our criminal code, for we have already remarked that the offence did not exist anterior to its passage; this being true, it would very materially seem that the reined}'- which the statute prescribes for its punishment should be strictly pursued; the statute declares “that any person or persons” charged with an offence against it “may be indicted for horse stealing or other larceny, in whatever county be or they may be so found with such’ horse, or other goods and chattels as aforesaid.” Hence, it appears that the bringing of the stolen property here was, to be considered a new asportation, in whatever county the thief might be found with it in his possession, and that the indictment should be drawn for a larceny committed against the peace and dignity of this State, locating the ■ taking and asportation in the county where the indictment is found. The language of the act is too plain to authorise any other interpretation, and this conclusion gains strength from the fact, that when property is stolen in one county and the thief is found with it in his possession in another, he may be indictee! and found guilty in the latter, because in any county in which the properly is found with him» there is a new taking.

If however it appeared from tiie count on which the prisoner is found guilty, by positive allegation, that this possession in Mobile was felonious, wo should feel disinclined to arrest the judgment, because then it would have stated with sufficient precision an offence known to the laws of the State.

Having examined (lie questions of law referred for our decision, our conclusions arc, that the offence with which the prisoner is attempted to lie charged, is one for which punishment may be inflated. But because the indictment is insufficient, the judgment: of the Court below must be arrested, and the prisoner remain in custody to await another trial, unless he be otherwise discharged by due course of law.

a 1 Hayw. R, 100.

b 2 Johns. R. 477, 479,

c 1 Mass. Rep. 116.

d 3 Conn. R. 185.

a 5th article.

b 8 Mass. R. 59,

a 1 South 40.

b Wilson's Ed. 3 Vol. 553, n.

c 1b. 554 Reynolds v. the State, 2 Not. and M. C. 365

d 3 Bacon Ab. 370.

e Comm. v. Morse, 2 Mass. R. 127