Hallett v. State ( 1876 )

Rex, J.

We are of opinion that the court of common pleas erred in refusing to instruct the jury, as requested by counsel for the plaintiff in error.

The crime of which the plaintiff in error was convicted is of the class of crimes denominated by the code of criminal procedure “ felonies,” to distinguish them from the class named in the same code, “ misdemeanors.”

The classification into crimes and offenses was first made in this state by the “ act for the punishment of crimes,” passed January 27, 1815 (13 Ohio L. 85), and the “ act for the punishment of certain offenses therein specified,” passed February 11, 1815 (13 Ohio L. 239), the former including crimes now denominated felonies, and punished capitally or by imprisonment in the penitentiary, and the latter, those now called misdemeanors, and punished by a fine or imprisonment in the county jail. Under the provisions of section 19 of the act of January 27, 1815, the stealing of goods and chattels of the value of ten dollars and upwards was punished by imprisonment in the penitentiary, not more than seven years nor less than one year; and section 38 of the same act prescribed the same penalty for receiving stolen goods of the same value, or for receiving, harboring, or secreting a thief or robber; while under the provisions of section 3 of the act of February 11 of the same year, the stealing of goods and chattels of a less value than ten dollars was punished by a fine not exceeding fifty dollars and imprisonment in the county jail not more than six months.

Although the value of the goods and chattels stolen,, which under the acts named distinguished a crime from an offense, has been frequently changed by successive legislatures, yet the classification made by the acts of 1815, above-cited, has been retained in all such acts, and is continued in the acts for the punishment of crimes and for the punishment of offenses now in force ; and since the passage of the act of January 27,1815, when the act of harboring or concealing a thief or robber was first made a crime in this state, it has been classed by the law-making power with crimes punishable by imprisonment in the penitentiary, and defined in and made part of the same section punishishing the crime of receiving stolen goods and chattels of a value sufficient to constitute a larceny by imprisonment in tbe penitentiary.

The proposition, therefore, that the legislature, under the provisions of section 26 of the act for the punishment of crimes, passed March 7, 1835, intended to punish a person convicted of harboring or concealing a thief, who had stolen goods and chattels of a less value than thirty-five-dollars, by imprisonment in the penitentiary for a term of years, when the thief, if convicted, could only be punished by a fine and imprisonment in the county jail, is not, as we-think, maintainable.

The other errors assigned as-grounds for the reversal of the judgment are not, in our opinion, well taken.

The judgment will be reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment reversed.