procurer of a misdemeanor,1 be indicted in the same locality with the immediate actor; for he, too, should be deemed a principal. But we have seen,2 that, owing probably to the blunder of some early judge, he has become in the common law punishable rather as the inciter to the act than as the doer of it; and so perhaps he ought to be indictable in the same manner, as to locality, with him who incites to a misdemeanor which is not done. But this question is left in doubt by the old authorities, and is doubtful also on principle. Often, indeed, it is difficult to say on principle, when one error, well established, should lead to the establishment of a second error. To remove this embarrassment, the statute 2 & 3 Edw. 6, c. 24, § 4, which we have seen to be common law in this country, provides, "that, where any murder or felony shall be hereafter committed and done in one county, and another person or more shall be accessory or accessories in any manner of wise to any such murder or felony in any other county, an indictment found or taken against such accessory or accessories . . . . in the county where such of fence of accessory or accessories in any manner of wise shall be committed or done, shall be as good and effectual in the law as if the said principal offence had been committed or done in the same county where the same indictment against such accessory shall be found." This statute extends also, we perceive, to the accessory after the fact; and clearly, as to him, the rule it prescribes is the same which is deducible from the ordinary doctrines of the common law. But, in respect to such accessory after, we should observe, as the doctrine of

1 Ante, § 560.

2 Ante, § 473, 481, 483.

* Ante, § 560.

42 Hawk P. C. Curw. Ed. p. 454 and note 2. And see Rex v. Easterby,

2 Leach, 4th ed. 947, Russ. & Ry. 37; Admiralty case, 13 Co. 51.

Ante, § 555.

2 Hawk. P. C. Curw. Ed. p. 455, § 50; 1 Stark. Crim. Plead. 2d ed. 5-7; The State v. Moore, 6 Fost. N. H. 448.

Ante, § 487.

the English courts, that, where the principal offence is on the high seas, within the admiralty, and beyond the common law jurisdiction, the receiving by such accessory of the criminal on land, and within the body of a county, cannot be taken cognizance of in the common law tribunals.1

3

§ 562. When we apply the foregoing doctrines to the actual facts of crime, we see, that often the indictment may be maintained in any one of several different counties. A frequent illustration of this proposition is witnessed in cases of larceny. For although, to constitute larceny, there must be a taking and a carrying away of the property by trespass,2 and the intent to steal and the trespass must concur in point of time; still, since one wrong neither justifies nor absorbs into itself another wrong, the legal possession as well as ownership continues in the owner, and every fresh removal is a fresh trespass; so that the thief can be indicted for a complete larceny, either in the county where he first took the goods, or in any other into which, the intent to steal continuing, he carries them. And it is immaterial whether he takes: them to the other county immediately, or a long time after the original taking; 5 though such transfer must be felonious, or there must be some felonious trespass in the new locality,

Admiralty case, 13 Co. 51.

1 Ante, § 419.

* Ante, § 314.

Rex v. Thompson, 2 Russ. Crimes, Grea. Ed. 116; The State v. Douglas, 17 Maine, 193; Tippins v. The State, 14 Ga. 422; Anonymous, 1 Crawf. & Dix C. C. 192; Crow v. The State, 18 Ala. 541; Commonwealth v. Cousins, 2 Leigh, 708; The State v. Whealey, 2. Harring. Del. 538; Commonwealth v. Rand, 7 Met. 475; Commonwealth v. Simpson, 9 Met. 138. On this principle it has been held, that, if, between the original theft and the finding of the indictment, the old statute relating to larceny has been superseded by a new one, the thief, who retains possession of the goods, may be proceeded against under the new statute. The State v. Somerville, 21 Maine, 14. The doctrine of the text does not apply to slave stealing in North Carolina. The State v. Groves, Busbee, 191.

Rex v. Parkin, 1 Moody, 45.

and not merely such as occurs when the prisoner, having the goods about him, goes there with an officer who has arrested him for the theft.1 But while a man may not, as thus seen, defend himself against a criminal charge by setting up his own crime in the same thing, he may, by setting up another's; and therefore if, with felonious intent, he receives and carries away goods he knows another to have stolen, he is not, in any county, indictable for the larceny of them. He is however an accessory after the fact, or a receiver of stolen goods, according to the peculiar statute law of the State.2

§ 563. From these views it follows, that, if the larceny in the first county is a compound one, as, for example, if it is committed in the course of a robbery, the conviction in the second county can be only for the simple larceny, not including its aggravations; because the aggravations took place only in the first county. And on the same principle, an indictment for stealing a "brass furnace," in a particular county, is not supported by proof that the prisoner stole such an article in another county, there broke it into fragments, and then took the fragments to the county where the offence is laid; because the thing stolen in the latter county was certain pieces of brass, not correctly described by the words brass furnace.4 Likewise it has been ruled, that, where four persons commit a joint larceny in one county, and there

1 Rex v. Simmonds, 1 Moody, 408.

* Rex v. King, Russ. & Ry. 332; ante, § 493, 494.

32 Russ. Crimes, Grea. Ed. 118; Rex v. Thomas, 2 East P. C. 605, 2 Leach, 4th ed. 634; Hale P. C. 507, 508, 536; 2 Ib. 163. And see Rex v. Millar, 7 Car. & P. 665; The State v. Groves, Busbee, 191.

Rex v. Halloway, 1 Car. & P. 127. And see Rex v. McAleece, 1 Crawf. & Dix C. C. 154; Anonymous, 1 Crawf. & Dix C. C. 192; Rex v. Edwards, Russ. & Ry. 497. Where the indictment was for stealing "two turkeys," and the proof showed, that they were killed before being taken into the second county, the charge was held not to be sustained; because, the court said, the words "two turkeys" implied live ones, and the indictment" ought to have been for stealing two dead turkeys." Rex v. Halloway, 1 Car, & P. 128.

divide the goods, and then bring them, in separate parcels, to another county, they cannot, in the latter, be held jointly, but each is guilty in the latter of a several larceny as to his separate parcel;1 while, on the other hand, if they commit in the latter county a sufficient joint trespass, with intent to steal, whether the goods were brought to it severally or jointly, they may be held jointly.2 Of course it is not material, in the application of these principles, whether the larceny is one by statute or at the common law.4

§ 564. Moreover it has been held, a doctrine not firmly established, though sufficiently so, that a man who deposits in the post-office a letter, provoking a challenge to fight a duel," or containing a libel or a forgery or an offer to bribe, is indictable in the county in which he deposits it; 9 while, as we have seen,10 he is also liable in the county to which it is sent. The principle underlying the doctrine is, that the deposit of the letter is a sufficient publication to con

1 Rex v. Barnett, 2 Russ. Crimes, Grea. Ed. 117. See Rex v. Dann, 1 Moody, 424; Rex v. Smith, 1 Moody, 289.

Rex v. County, 2 Russ. Crimes, Grea. Ed. 118; Commonwealth v. Dewitt, 10 Mass. 154. See Rex v. McDonagh, Car. Crim. Law, 3d

ed. 24.

3 Ante, § 85.

* Commonwealth v. Simpson, 9 Met. 138; Commonwealth v. Rand, 7 Met. 475; Crow v. The State, 18 Ala. 541. And see The State v. Whaley, 2 Harring. Del. 538; Rex v. Thomas, 2 East P. C. 605, 2 Leach, 4th ed. 634. Rex v. Millar, 7 Car. & P. 665, may well be put as having turned on a question of evidence; and whether the reporter is right in his note,

query.

Rex v. Williams, 2 Camp. 506. And see Rex v. Burdett, 4 B. & Ald. 95, 127.

Rex v. Burdett, 3 B. & Ald. 717, 4 B. & Ald. 95.

Perkin's case, 2 Lewin, 150.

$ United States v. Worrall, 2 Dall. 384, 388.

And see Rex v. Johnson, 7 East, 65, 3 Smith, 94; Rex v. Watson, 1

Camp. 215; Rex v. Williams, 2 Camp. 506.

10 Ante, § 556.

stitute an offence, either as a substantive crime or as an attempt.1 So, under various circumstances, the act of embezzlement may be deemed to have been committed in any one of several different counties, at the election of the prosecuting power.2 And, though the gist of conspiracy is the unlawful combination, so that the offence is cognizable only in some county where such mental concord took place; yet, as in point of law the conspirators renew the conspiracy with every act done by any one of them in carrying out the plan, they may be indicted either in the county in which they first entered into the unlawful combination, or in any other county in which, in pursuance of it, any overt act is performed.5

$565. We have thus far been examining the subject of the present chapter in the light of the common law as it prevails in our States. Besides the English statute of 2 & 3 Edw. 6, c. 24, which we have seen is common law here, there are other acts of parliament sufficiently early in date to fall within the same consideration. But they are all either of a nature local to the mother country, or otherwise of no practical common law importance with us.8

1 And see ante, § 312, 511, 513.

2 Rex r. Taylor, 2 Leach, 4th ed. 974, Russ. & Ry. 63, 3 B. & P. 596 ; Rex v. Hobson, 1 East P. C. Add. xxiv., 2 Leach, 4th ed. 974; Reg. v. Murdock, 8 Eng. L. & Eq. 577; 1 Stark. Crim. Plead. 2d ed. 25, 26.

5 Commonwealth v. Gillespie, 7 S. & R. 469, 478; People v. Mather, 4 Wend. 229, 259; Rex v. Brisac, 4 East, 164; Rex v. Bowers, cited 4 East,

171.

Ante, § 555, 561.

See 1 Stark. Crim. Plead: 2d ed. 9-20.

The statute 1 Jac. 1, c. 11, against bigamy, provided, in § 1, that the offender might be tried in any county where he should be apprehended. 1 Stark. Crim. Plead. 2d ed. 11. But I presume this enactment to be superseded, in all the States, by more recent legislation. Under it, the English