Watson v. State

Harris, J.:

The plaintiff in error was indicted, in the circuit court of Clarke county, for stealing certain slaves. The offense was alleged to have been committed in the county of Clarke. The plaintiff in error plead not guilty, and the cause was submitted to the jury on this issue. Several objections were made to the admissibility of testimony, by the counsel for plaintiff in error, in the progress of the trial, which were overruled by the court, .and exceptions taken and máde part of the record, which will be hereafter noticed. Also, the instructions given and refused; all which appear in the record. The jury returned a verdict of guilty. A motion was made for a new trial, which was refused, and the plaintiff in error sentenced to ten years imprisonment ' in the penitentiary.

Erom this judgment a writ of error is prosecuted here, and the following causes for reversal are assigned:

1st. The' court erred in overruling the objection of the plain *1193 tiff in error to that portion of the testimony of Elizabeth Peterson drawn ont on cross-examination, .which went to show fraud in the bill of sale, executed by herself to plaintiff in error.

2d. The court erred in overruling the objection of plaintiff in error to the testimony introduced to show weakness and imbecility of mind of Elizabeth Peterson.

3d. The court erred in granting each and all of the instructions asked by the state, except the fourth.

4th. The court erred in each and all of the instructions asked by the defendant, numbering respectively, 1, 2, 4 and 5.

5th. The court erred in overruling the motion for a new trial.

The two first assignments of error relate to the testimony introduced by the state, for the purpose of showing the original, wrongful, fraudulent, and felonious intent of the defendant. That the bill of sale was procured by false and fraudulent representations, without any consideration, and under pretense of protecting the title and possession of her property, for her benefit, from a weak-minded old woman, under his care and' protection, was certainly competent evidence to he submitted to the jury, to establish the defendant’s original intent. Wharton’s American Or. L., § 1855; Bishop’s Cr. L., § 431; 2 East P. C., 685 and 693.

The third assignment of errors embraces the instructions given by the court at the request of counsel for the state; and the fourth assignment embraces those asked by the defendant’s counsel and refused.

We think the instructions, as given to the jury, taken together, present no ground of error for which the judgment should be reversed. ,

It is insisted that the sixth instruction for the state was erroneous. That instruction substantially asserts the position, that one leaving this state, with the felonious design of stealing slaves in Alabama, and bringing them into this state, and here converting them to his own use, and who carries that design into execution, both in Alabama and Mississippi, is guilty, as charged in the bill of indictment, of stealing here. It is said that, while it is true by the common law, that “ if one steal *1194 goods in one county and carry them into .another county, he may be indicted in either county for the theft; but if one steals goods, in one state, and carry them into another state, he is not liable in the latter state for larceny.” And for this distinction we are referred to Butler’s case, cited by Lord Coke, 13th part of his reports, page 52, Yol. YI, and to 3 Institutes, 113, and other-text writers and cases, both English and American, founded on and citing Butler’s case.

Butler’s case was this. Butler and other pirates robbed some of her majesty’s subjects, in the twenty-eighth year of the reign of Queen Elizabeth, off the coast of Suffolk, upon the high sea, and brought the goods into Norfolk, where they were apprehended, with the goods, and brought before Lord Cokej who was then a justice of the peace of that county. He says: “ They confessed a cruel and barbarous piracy, and that the goods they then had with them were part of the 'goods they had robbed from the queen’s subjects on the high sea. I was of opinion (says he) that in that case it could not be felony, punishable by the common law, because the original act — the taking of them — was not an offense whereof the common law taketh knowledge; and by consequence, the bringing them into a county, could not make the same felony punishable by our law; and it is not like where one stealeth goods in one county and brings them into another. There he may be indicted of felony in any of the counties; because that the original act was felony, whereof the common law taketh knowledge. And yet, notwithstanding, I committed them to the j ail, until the coming of the justices of assizes; and at the next assizes, the opinion of Wray, C. J., and Periam, J., was, that forasmuch as the common law doth not take notice of the original offense, the bringing of the goods stolen upon, the sea into a county did not make the same punishable at the common law.” He' adds: “ And this in effect agrees with Lacey’s case, cited in 2 Coke’s B., 93, in Bingham’s case.”

This report of Butler’s case was made by Lord Coke when he was chief justice, on a question of admiralty jurisdiction, arising in Hawkins’ case, 13 Coke, 52, from which the above report is taken. The point there, presented was, “If a man *1195 committed piracy on the sea, and'another, knowing thereof, receiveth and comforteth the defendant, within the .body of the county, whether, under the Stat. 28, H. 8, ch. 16, he is indictable as a receiver and abettor, inasmuch as the offense of the accessory hath its beginning in the body of the county ? ”

“ And it was resolved by them, that such receiver and abettor, by the common law, could not be indicted and convicted'; because the common law cannot take cognizance of the original offense, because that is done out of the jurisdiction of the common law, and, by consequence, when the common law cannot punish the principal, the same shall not punish any one as accessory to such a principal; and, therefore, Coke, C. J., re-. ported to them a case which was in Suffolk.” Butler and others, as stated above.

Considered with reference to the question before the court, whether an accessory to an offense committed abroad, against another jurisdiction, and not cognizable by the common law of England, would be indicted and punished as such accessory, in England, or whether an offense committed against the laws of one jurisdiction, could be punished in another jurisdiction having different laws. Butler’s case could only be in point to show, that piracy and robbery on the high sea could be punished in a county in England where it never happened.

The question here presented was never discussed, considered, or thought of, so far as we can learn from any report of Butler’s case extant. And to show conclusively that this was the opinion of Lord Coke, and its extent, after stating that Butler and his confederates were committed to Sir Bobert Southwell, vice-admiral of said counties, he adds: “ And this, in. effect, agrees with Lacey’s case, which see in my reports, cited in Bingham’s case, in 2 Beports, 93,” &c. Upon referring to that case, it appears as follows : Lacey struck Peacock, and gave him a mortal wound, upon the sea, of which Peacock died, at Scarborough, in the county of York; and Lacey was discharged of it; for those of the county of York could not inquire of his death without inquiry of the stroke; and of the blow they could not inquire, because it was not given within any county. .. It is obvi-. bus, therefore, both from the purpose from which Lord Coke *1196 cited Butler’s case, as well as the direct statement that it agrees with Lacey’s case, that the point here presented was never considered in Butler’s case.

And that such is Lord Hale’s understanding of Butler’s case, see 2 Hale P. C., 18 and 163.

And in 3 Inst., 113, Lord Coke, in'treating of the subject of “ Piracy, &c., committed on the high seas,” cites Butler’s case to show that such offenses, committed out of the jurisdiction of -any county in England, could not be there punished by the courts of the common law.

It will be perceived, therefore, that Butler’s case was not designed to create an exception, but falls within a rule as old as the common law itself — that an offense, to be indictable, must have been completely committed in the county, and must be so charged in the indictment, and proved to the satisfaction of the jmT-

But again: it is a principle universally admitted, and so Lord Coke states the rule in the Butler case, as cited, “ that where one stealeth goods in one county, and bringeth them into another, then he may be indicted for felony in any of the counties.” “ Because,” says Lord Coke, “ that the original act was felony, whereof the common law taketh knowledge.”

While the principle thus stated has been universally sanctioned, the reason assigned by Lord Goke • is almost as universally omitted, and one given, not only much more satisfactory as to the foundation of this rule, but destructive of the exception sought to be engrafted on it by the construction placed upon Butler’s case.

There never was a time in the history of the common law when it did take knowledge in one county of an “ original act ” of felony in another county, any more than it now takes notice of any crime in one state or county, committed in another. So jealous were our ancestors of the preservation of this principle, that 'the venue was always regarded as matter of substance; and, therefore, at common law, when the offense was commenced in' one county, and consummated in another, the venue could not be laid in either, because no offense was committed in either. *1197 ■1 Archb. Cr. P., 64, note; 1 Hale P; C., 651-53; Hawkins P. 0., bk. 2, ch. 25, § 36.

That the reason assigned by Lord Coke above, for the principle stated, is not the true reason, or, indeed, any reason at all,, will be abundantly manifest from an -examination of the text-writers, both English and American, as well as adjudged cases cited by them.

Mr. Archbold, after stating this rule of the common law, and that it was always regarded as matter of substance, citing many examples from the books to show its-strictness' and explain its reasons, says: “At common law, however,-if a party steals goods in the county of A., and carry them into the county of B., he may be indicted or appealed of larceny in the latter county.' But this does not contradict the general rule, but is founded upon another principle, viz., that the possession of goods stolen, by the thief, is a larceny in every county into which he carries the goods, because the legal poesession still remaining with the owner, every moment’s continuance of the trespass and felony amounts, in legal contemplation, to a new caption and asportation.” 1 Arch. Cr. P., 63-4, note'l, and 69, note 2; 2 East P. C., 771-2.

So Mr. Russell says: “Larceny, like every other offense, must regularly be tried in the same county or jurisdiction in which it was committed; but it should be noted, with respect to larceny, that the offense is considered as committed in every county or jurisdiction into which the thief carries the goods; for the legal possession of them remains in the true owner, and every moment’s continuance of the trespass and felony amounts to a new caption and asportation.” 2 Russell Cr. Law, 116.'

So, also, Lord Hale lays down the reason of the rule: “ If A. robs B. in the county of 0., and carries the goods into the county of D., A. cannot be indicted of robbery in the county of D., because the robbery was in another county; but he may be indicted of larceny or theft in the county of D., because it is theft, wherever he carries the goods.” 1 Hále P. 0., 507-8; 2 ib., 163.

The same principle, for the same reason, is stated in 2 Dyer R., 39.

And Lord Coke himself, in Bulwer’s case, 7 Coke, 57, admits *1198 the same principle. ■ “ For,” says he, “ felony doth not divest property.”

■ A gain : Mr. Hawkins says, “ It is certain that he who steals my goods in the county of B., and carries them into the county of.C., may be indicted or appealed in the county of C., as well as.that of the county of B., because the possession still continuing in me, every moments continuance of the trespass is as much a wrong, and may come under the word cepit, as much as the first talcing.” Hawkins P. C., ch. 19, § 52, p. 151.

Mr. East states the same principle, and gives the same reason, in nearly the same language. 2 East’s P. 0., 771-2.

It is, then, for the reason so often repeated in the cases just cited, and not because of the supposed “ knowledge ” which the common law takes of offenses committed in different counties or jurisdictions, that the removal of stolen property from one county to another is universally admitted by the authorities to be- a larceny in every county into or through which it is removed.

We again repeat, that never in the history of the common law did it take “ connusanee ” m one county of offenses committed in another, any more than it took notice in England of offenses committed in the United States. The common law, in every age and every country where it has been recognized, has confined itself, in the punishment of crimes and misdemeanors, to. the county where they have respectively happened. It has,' therefore, recognized no such distinction, in its operation, between comities and countries as that supposed to be' established by Butler’s case. The reason assigned for the distinction, therefore, between counties and states, is wholly unsupported in fact om upon principle ; and the distinction, thus originated, has only received the dubious sanction of three illy-considered cases, iñ England. Rex v. Prowes, 2 Eng. Crown Cases, 348, decided in 1832, upon the authority of Butler’s case; arid Regina v. Madge, 38 Eng. C. L. R., 23, on the sole authority of Rex v. Prowes, decided in 1839; and Rex v. Anderson, decided in-1763; cited in 2 East, 772. And a few early cases in this country, following and citing the reasoning and authorities already, deferred to.

*1199 In support of this'distinction we have'been referred to several ' American authorities,- and to text-writers, noting the exception supposed to be made by Lord Coke, in Butler’s case, arid giving that case and the reason it assigned for such exception!'-'-

The State v. Brown, 1 Hayward, N. C. R., 116, decided oil the ground that there was but one offense, and not a new capí tion and asportation at every step, as held by the authorities already cited, and on the authority of Hawkins’ P. C., citing Butler’s case, so holds.

It is so held in Simpson v. State, 4 Humph., 456 , and an elaborate argument tnade, to prove that when property is stolen in one state, and removed to another, the legal, possession-of the true owner is thereby lost, and the wrong-doer acquires a right thereto which-gives him criminal, though not civil,-immunity for the continued trespass and wrong. ■ ; ~

' The two cases from 2 John. (The People v. Lardiner, 477j and The People v. Schenck, 479), deciding the same way, and cited in 4 Humphries, neither furnish us a single reason or authority for their decision. On' the contrary, in the first case twd authorities are' cited to the contrary. These two cases are sril)sequently directly overruled in 11 Wendell, independent of tfie statute, under which' this last case occurred. “

The only remaining case in this country where this exception is maintained, which has come to our notice, is the case of Simmons' v. The Commonwealth, 5 Binney, 617.

' This case is reviewed by Mr. Bishop, in his work on Criminal law, vol. 2, § 596. After having stated in the' previous section that: i£ Our courts cannot punish offenses against a foreign government, nor, therefore, take cognizance of such offenseá Neither, on the other hand, can a man be heard to excuse hiriiself for a criminal act here, by alleging that he did the same thing elsewhere..” He says: “ Therefore, when a jury, sitting in Pennsylvania, found a special verdict, ‘that the defendant did feloniously steal, take, and carry away the goods * * . * within the state of Delaware, and that he brought the same into the city of Philadelphia, within the jurisdiction of this court,’ the judges very properly refused to sentence the prisoner; while probably the jury, on the facts, might have rightly con *1200 victed him of larceny in Pennsylvania. Always, when a man has within him property in this state, we may look into the legal relation he sustains to it.. . If, he has stolen it in another state, he has not the right to its custody even here; and the rule in larceny is, that.when a man, having in his mind the intention to steal, makes, any. removal or ¡carrying away of personal property, to the ■ custody of which he has no right, he commits the crime.

'■ “ And, therefore, in the above case, the finding of the jury, in so far ■ as it stated a larceny, in Delaware, was wholly irrelevant ; and in omitting to say whether there was a removal of the goods by trespass, with the intent to steal them, in Pennsylvania, it was defective.”

■ See, also, the reasoning of Justice Breckinridge, in his dissenting opinion.

On the other hand, the cases and text-writers, in this country, (and more especially those of latest date, with the exception of 'those referred to above, repudiate this exception, and maintain 'the original rule, to be found everywhere in the law books,. that larceny is considered as committed in every county or state jurisdiction into which the the thief carries the goods, for the reason that the legal possession of them remains with the true owner, and every moment’s continuance of the trespass and 'felony amounts to a new caption and asportation.” 2 Russell Cr. L., 116; The People v. Burke, 11 Wend., 129 ; State v. Bartlett, 11 Vermont R., 650; Hamilton v. State, 11 Ohio, 435; Hemmaker v. State, 11 Missouri R., 453; The Commonwealth v. Cummins, 1 Mass R., 116; Same v. Andrews, 2 Mass. R., 14 ; Same v. Rand, 7 Metcalf, 477; Same v. Uprichard, 3 Gray’s R., 434; Cummins v. State, 1 Harris. & Johns. R., 340; State v. Ellis, 3 Conn., 185 ; State v. Douglass, 17 Maine, 195; State v. Somerville, 21 Maine, 14; State v. Kinman, 7 Richardson S. C. R., 497. See, also, 1 Bishop’s Cr. Law, §§ 595-600; 1 Archb. Cr. (Pl., 68, note 2 (by Waterman, 6th edit.), and 63, 64, note 1; 2 Archb. Cr. P., 355, 13, 14, 15, note 1; Wharton’s American Grim. Law, §§ 1815-17.(4th revised edition); 2 Bussell oxx. Crimes, (7th Amer. edit.), 116 and notes, 118 and 119 and notes.

*1201 .. It is said: “ There can. be here no hew caption or asportation at every .step, unless the original taking were a felony, under the laws of this State, and indictable here.”

Why should this be so ? That a thief has stolen property in the county of Hinds is no more an offense punishable in Clarke than it would be in Alabama. Exemption from prosecution for such an offense is just as perfect in Clarke as it would be in Alabama or in England. It might, therefore, be said, with quite as much legal, accuracy, that there can be no new caption or asportation in the county of Clarke, unless the original taking in Hinds were a felony under the laws of this state, indictable bn Clarke.. There is just as much, reason for one position as the other.

The true question in every case is,-not-from whence came the wrong-doer, but has he committed larceny in the county where indicted? To ascertain this, we must look to the proof, in view of the definition of the offense.

The proof involves the intent and the act. The existence of the intent may be shown in any locality, county, state, or country. The commission of the act must■ be shown in the county where the indictment was had.

■ There is a wide difference between the. proof of the act and the evidence of the intent with which it was done. The intent; precedes the act, and may be evidenced at different times, and in various jurisdictions. It may be shown by the declarations of the actor, or by facts and circumstances happening in a distant country, or a different jurisdiction from that where the acr , tual offense occurred. But the act which results from such unlawful intent, and is characterized by it, must be proved to have been committed in the particular county alleged in the indictment. See 1 Bish. Or. Law, §§ 554,- 556, 560, and many, cases cited.

■ To give the court jurisdiction, whether by the common law or by our constitution, there must be a complete offense proved in the county, to the satisfaction of the jury, and not an offense in any other county or state.

To ascertain the ownership of the property,, and the bona Jides of the defendant’s possession, in the county where the *1202 offense is charged, it is competent to show the relation of the defendant to the property elsewhere, or that he came into possession of it in another county, or in another state or county, or even where no municipal law existed, by a wrongful and immoral act, contrary to the' laws of nature; and that, in the ' prosecution of his original fraudulent design, he brought the property into the county where the indictment is found, and was there guilty of the illegal and felonious caption' and asportation alleged against him.

While, therefore, the acts, the conduct, and situation of the accused in relation to the property, preceding the caption and asportation in the county, are evidence to his original and continued fraudulent intent, yet a man can neither be punished or escape punishment for larceny in one county, by reason of his having committed the like offense in relation to the same subject in another state or county. 1 Bishop, §§ 554 to 600.

And such is the principle clearly deducible from the case of Coon v. State, 13 S. & M., 246 .

If it be time, as it is admitted from Butler’s case to this day, everywhere, that the wrongful and fraudulent possession of goods, with intent to steal, neither by the law of nature, nor by the law of any civilized country, ever gave the wrong-doer a right to their possession; that the legal possession of such goods still remains with the true owner; and that every moment’s continuance of such wrongful deprivation, with the intent to convert them to the taker’s use, is a new taking; with what possible consistency, in reason, can a distinction be made on account of the locality from which the offender comes with his wrongful acquisition ?

• No matter whether he comes from another county or another state, or emerges from a state of nature for the first time, clothed with the moral guilt of larceny, our common law does not stop to- inquire who he is, or from what clime he may have escaped, dr of what offense he may have been guilty elsewhere; but finding him in the very act of taking, in' this state, and carrying away the personal goods of another, with a felonious intent, against the laws of this state, it takes jurisdiction of the offense ánd the offender; otherwise our state not only affords refuge for *1203 crime, but adds immunity for tbe past, license for tbe future, and right to tbe present possession, so far as relates to the principle, property so brought into our jurisdiction.

Larceny is defined to be “ tbe wrongful or fraudulent taking and carrying away, by any person, of tbe mere personal goods of another, from any place, with a felonious intent to convert them to bis own use, and make them bis own property, without the consent of tbe owner.”

Tbe original taking must be a trespass. Amer. Or. L., 1864-; A trespass is any .transgression or offense against tbe laws of nature or society, whether it relates to person or property. 3 Black. Com., 208.

In tbe absence of all civilized government, it is agreed by all writers, that occupancy gives right, and this is regarded as tbe origin of property. Mr. Christian, in a note to tbe second volume of Blackstone’s Commentaries, p. 8, familiarly illustrates the origin of property and tbe right to its enjoyment. lie says: “ When an untutored Indian has set before him tbe fruit which he has plucked from tbe tree that protects him from tbe beat of tbe sun, and tbe shell of water raised from tbe water at bis feet, if be is driven by any daring from this repast, so easy to be replaced, he instantly resents tbe violation of that law of property which Nature herself has written upon tbe hearts of all mankind.”

Tbe right of property, therefore, exists by tbe law of nature, independent of municipal law, and bad its origin in tbe same immutable principles of reason and justice, under tbe law of nature, which is tbe great object of municipal laws to preserve and enforce. That there was no government, no law, either' common or statute, to punish tbe trespasser, who has possessed himself of tbe goods of tbe natural owner, does, not sanctify bis trespass, or ripen it into a virtuous or moral act, or give him title to the thing taken. Tbe moment, therefore, that be takes bis unlawful acquisition into tbe jurisdiction of tbe common law, with tbe intent to convert it to bis own use, be has brought himself in tbe new jurisdiction, within tbe strictest definition of larceny. Such intentional violation of tbe possession and right of tbe true owner has every element in tbe definition, and every *1204 essential of. the. moral guilt; and there can be no good reason why it should not incur the penalty of larceny. That Alabama is a sovereign state, having laws of her own against which the larceny in that state may be an offense, does not render the felonies in Mississippi the less an offense against our code. There is nothing in the nature or character, of the respective offenses against the laws of the two jurisdictions calling for sympathy or lenity, or making the execution of the one dependent on the action of the other. This merciful doctrine of exemption from penalty, because of the continued and wilful repetition of the ■ same, offense, or of immunity for offenders, because of the number, enormity, and ubiquity of their offenses, is ■ one which can find no sanction in the true benignity of criminal jurisprudence.

Regarding the question as an open one in this state, we feel no hesitation in declaring the rule, without exception, as to the doctrine of the common law, “ that the legal possession of goods stolen continues in 'the true owner; and every moment’s continuance of the trespass and felony amounts, in legal consideration, to a new caption and asportation,” which may be the subject of indictment in every state to which the goods ar.e removed, at common law.

That .an eminent jurist may have decided differently, and that others have, cited his error, who, in turn, have become the root of a new succession, adds nothing in our judgment to the force of their, reasoning, which alone gives force to judicial opinions or precedents.

Counsel for plaintiff in error, have mistaken the record in supposing that the third instruction, asked for the plaintiff in error, in the court below, was refused.

The third instruction was, “ that to • make out the charge of larceny, it is necessary, to prove a taking and carrying away in the county in wliieh the alleged felony is charged to have been committed; and that the state, to sustain this prosecution, must prove a taking and carrying away of the negroes in Clarke county.” This instruction was given, and not refused, as supposed.

The ease before.us does not, therefore, involve the question before the court in the case of Norris v. State, 83 Miss. R., 373 , *1205 where this instruction was refused under a similar indictment.

The question, in this case, was one of fact, submitted to a jury, with proper instructions from* the court. They found the defendant guilty, as charged in the bill of indictment, and with their verdict we see no good reason to find fault.

The motion for a new trial was properly refused.

Let the judgment be affirmed.