Allison v. Commonwealth , 1885 Ky. LEXIS 64 ( 1885 )

JUDGE LEWIS

delivered the opinion op the court.

Tlie indictment in this case, found in the Jessamine Circuit Court, but tried in the Payette Circuit- Court, contains two counts. In the first, the defendant is charged with the crime of horse-stealing, and in the second with receiving stolen property, knowing it to be stolen. And the main question presented on his appeal from the judgment of conviction js as to the correctness of the following instruction:

“If the jury believe from the testimony, to the exclusion of a reasonable doubt, that the defendant in the county of Jessamine, before the finding of the-indictment herein, either alone or in company with another or others, whom he being present did aid or' abet, feloniously took and carried away the horse-. mentioned in the indictment, the property of Rowland Williams, or feloniously received said horse, knowing at the time he received it that it had been stolen, the .jury should find the defendant guilty and fix his punishment at confinement in the penitentiary for not less than two nor more than ten years.”

The evidence in this case is clear that the horse mentioned was, some time during Sunday night before the October county court of Clark county, 1883,. ■stolen from the owner in Jessamine county, and was on the next day in the possession of the defendant in Winchester, Clark county, when and where he sold it. 'There is also evidence showing that the defendant was in Jessamine county some time during the Sunday the horse was stolen, but it is also clearly established that he was not there, but in Winchester, during that Sunday night, and did not, in person, actually take and carry away the animal from the owner.

It is conclusive that "the offense of which the defendant was by the jury convicted, though not stated in the verdict, was* receiving the stolen horse, knowing it to be stolen, as charged in the second count of the indictment, and not the larceny charged in the first •count. For they were not authorized by the evidence to find him guilty of alone taking and carrying away the horse; nor could they have found him guilty of aiding and abetting another in the larceny without disregarding the instruction, which, as worded, required them, as a condition, to believe him present when the horse was stolen.

The instruction is not as clear and plain in language as it should be; but we are satisfied the jury ■construed it as authorizing them to find the defendant guilty of the offense charged in the second count, though committed in the county of Clark, as there was no evidence it was committed elsewhere. Besides, the bill of exceptions shows that the defendant objected to the instruction on that .ground, but the lower court refused to modify it, assuming that the Jessamine circuit court had jurisdiction.

The question of jurisdiction being thus presented, it is our duty to decide it.

Section 18, Criminal Code, provides that the local .jurisdiction of circuit courts * * * shall be ■of offenses committed within the respective counties in which they are held.”

Section 21 is as follows: “If an offense be committed partly in. one and partly in another county, ■or if acts and their effects constituting an offense 'occur in different counties, the jurisdiction is in either county.”

In our opinion the sole inquiry necessary is, * whether receiving stolen property, knowing it to be stolen, is a substantive offense distinct from lar•ceny of the same property. For if it is, then only the circuit court held in the county where it may ibe committed can take jurisdiction.

It would seem the General Statutes furnish a satisfactory answer to this inquiry. For, while the .•same punishment is prescribed for the two offenses, they are therein recognized and treated as separate .and independent.

Receiving stolen property, knowing it to be stolen, is itself a complete offense. It is not necessary, in. order to convict of that offense, that the guilt of: the person who stole the property shall be first established, nor his name be known or even stated ini the indictment, or to prove the accused to be in. any way connected with the larceny. The gist of' the offense consists of the guilty knowledge of the-property having been stolen.

In this case the person who stole the horse in Jessa.mine county is not known. But the offense' charged, in the second count was, according to the evidence, committed by the defendant, if at all, wholly in Clark, county, and nothing necessary to constitute the offense; nor a part of it was done in Jessamine county.

In the case of Tully v. Commonwealth, 13 Bush,. 142, the defendant was indicted in the Scott Circuit' Court, charged with the offense of being accessory, after the fact, to the commission of the crime of murder in that county. But the particular circumstances;' of the offense, which consisted in furnishing the person charged with murder with money while in the; course of his flight-with which to effect his escape,, and secreting him for that purpose from arrest, occurred in Logan county. In that case this court' held, that as the accessorial acts were all done in\ Logan county, the Scott Circuit Court had no jurisdiction. And if this rule for determining criminal jurisdiction of circuit courts can be applied in that «case, we see no reason why it should not govern in this.

It is well settled that a thief can' be indicted for a complete larceny, either in the county where he first. took the property, or in any other into which, the intent to steal continuing, he carries it.

This doctrine rests upon the theory that'the title and legal possession continues in the owner, and the asporting it from the county where first stolen is a, continuation and renewal of the offense. And section 18 of the Code just quoted was doubtless intended to> provide for such case. But in this case the inception and completion of the offense charged in the second, count of the indictment were entirely in Clark county,, and in’ our opinion the defendant could be indicted, therefor only in that county.

Consequently, the court erred in instructing the-jury otherwise, and the judgment must be reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.