Изображения страниц

aspect, from that of goods stolen in one county and conveyed by the thief into another county, within the same State. In another aspect, it is the same question. No indictment can ever be maintained, unless the proof establishes a complete offence in the particular county in which it was found. But where the first taking was in the same State, though in another county, the court can see the relation of the thief to the property, after he brings it into the county of the indictment, to be that of a felonious possessor; and so can infer a larceny in the latter county, from the mere fact of possession. Yet where the first taking is abroad, no such inference can be drawn from the mere possession; while, if inquiry establishes something beyond possession within this State, then the fact of there being in the possessor here no right to the possession, to the custody, or to any handling whatever of the thing, added to proof of intent to appropriate it wrongfully here, with a knowledge of the ownership being in the other, establishes the complete offence. Our courts indeed have no occasion to try, neither have they jurisdiction to try, larcenies committed abroad, against the laws of foreign governments. But our courts can try all offences against our laws; and, if a man has property in his hands here, they can inquire what legal relation he sustains here to this property; and, if it came with him from a foreign country, the relation he sustained to it there establishes his relation to it here. This is familiar law, undisputed, practised upon daily in all our tribunals in the ordinary matters of litigation.

$ 597 a. The proposition, that a man is to escape punishmeut for the violation of our laws because he first violated the laws of a foreign country, is absurd in itself, and mischievous in its practical application. Nothing is plainer than that, when a man is found here with property, our courts will inquire after the owner of it, equally whether such owner is alleged to be a foreigner or a citizen, present personally, or absent. Nothing is plainer than that our courts will protect

1 Ante, & 557, 562.

. the rights of property, equally whether the property is in the owner's grasp, or wrongfully found in the grasp of a felon. And no principle in the law of larceny is better established, as a general doctrine, than that any physical removal, however slight, of the entire physical substance of the thing alleged to be stolen, to which physical substance the remover has not the right of possession, even though he has it in custody lawfully or unlawfully, is, where the felonious intent exists, larceny. If, therefore, the complete offence is not committed here, by one bringing here from a foreign country personal goods which he has there stolen, using them here as his own, and meaning at the same time here to deprive the owner of his ownership therein, then is it impossible for any man, under any circumstances, to do acts completely falling within all the descriptions and definitions given in the books of this offence.

$ 598. When we turn to the authorities, we find, that they have not always proceeded on the principles thus stated. In an old English case, where goods seized piratically on the ocean were carried by the thief into a county of England, the, common law judges refused to take cognizance of the larceny, and remitted the matter to the admiralty; " because," said they, "the original act, scil. the taking of them, was not any offence whereof the common law taketh knowledge; and, by consequence, the bringing of them into a county could not make the same felony punishable by our law.”? And the doctrine has been since applied, in England, both to goods stolen in other parts of the king's dominions, and stolen in foreign countries. This doctrine has been followed by the

1 Butler's case, cited 13 Co. 53, 3 Inst. 113. And see Reg. v. Wallace, Car. & M. 200. · Rex r. Anderson, 2 East P. C. 772; Rex v. Prowes, 1 Moody, 349. Reg. 1. Madge, 9 Car. & P. 29.


courts of New York, Pennsylvania, North Carolina, and Tennessee. It has been discarded, and the opposite ► held, in Connecticut, Vermont, and Ohio.8 In Massachusetts, the court discarded it also, holding defendants liable, where the facts showed the original larceny to have been in another of the United States ; 9 but, in a late case, where it was in one, of the British provinces, the conviction was „overthrown.10 The rule which holds the criminal guilty in the State, to which he brings his stolen goods has likewise been prescribed, i by statute, in New York 11 since the before-mentioned adjudi. cation was made; also in Alabama,12 Missouri,13 and some other States.14

$ 599. And it is a little remarkable, that, in all the discus-, sion which this point has received, the precise aspect of it presented in the foregoing sections 15 has been no more than indistinctly shadowed; while evidently the view there taken places it, to one familiar with all the principles governing i sạch questions, beyond doubt. Yet where this view has par

People v. Gardner, 2 Johns. 477; People v. Schenck, 2 Johns. 479. See People r'. Burke, 11 Wend. 129.

* Simmons v. Commonwealth, 5 Binn. 617. 3 The State 1. Brown, 1 Hayw. 100.

Simpson v. The State, 4 Humph. 456, 459. 6 Ante, $ 595. 6 The State v. Ellis, 3 Conn. 185. ? The State v. Bartlett, 11 Vt. 650. 8 IIamilton v. The State, 11 Ohio, 435.

Commonwealth v. Cullins, 1 Mass. 116; Commonwealth v. Andrews, 2 Mass. 14; Commonwealth v. Rand, 7 Met. 475, 477. 10 Commonwealth v. Uprichard, 3 Gray, 434.

People v. Burke, 11 Wend. 129. 1: The State v. Seay, 3 Stew. 123 ; The State v. Adams, 14 Ala. 486; Murray v. The State, 18 Ala. 727.

13 Hemmaker v. The State, 12 Misso. 453. 14 And see Fox v. Ohio, 5 How. U. $. 410, 434. 15 Ante, $ 595–597 a.


tially appeared, an objection seems to have arisen to it, that it renders the prisoner liable to be twice convicted and punished for one offence, in violation of the spirit of the common law; but this objection, we shall see in the proper place, is without weight The common law either admits of two convictions in such a case, or it does not; if it does, there is nothing in the objection; if it does not, then the first conviction, in whatever locality it takes place, may be pleaded in bar of the second. The common law, however, knows no such plea in defence of a prosecution as liability to indictment elsewhere.

[ocr errors]

$ 600. And the doctrine may be laid down generally, in respect to States, as we have seen in respect to counties, that, if a complete offence is committed in the locality of the prosecution, quite immaterial is it what is done or attempted in a foreign locality. Thus a challenge here to fight a duel in another State is indictable, the same as if the duel were to be fought here. It has indeed been held by some tribunals, as we have already seen, that, when a blow is inflicted on the high seas, and death follows on land; or in one State, and the person expires in another; there can be no indictment for the murder as committed in the former place: but even this doctrine, which we also saw does not rest well on principle,

· See post, c. 47.
* Ante, $ 554-564.

3 The State v. Farrier, 1 Ilawks, 487; The State v. Taylor, 1 Const. 107, 3 Brev. 243. And see further, as illustrating this general matter, ante, $ 204; Commonwealth v. Cone, 2 Mass. 132; Commonwealth v. Judd, 2 Mass. 329; Commonwealth v. King, 1 Whart. 448; The State v. Carr, 5 N. H. 367; People v. Babcock, 11 Wend. 586; Rex v. Dick, 1 Leach, 4th ed. 68; Rex v. Kirkwood, 1 Moody, 311; Johnson v. People, 4 Denio, 364; Rex v. McKay, Russ. & Ry. 71 ; Rex v. McKeay, 1 Moody, 130; Commonwealth v. Hensley, 2 Va. Cas. 149; Cummings v. Commonwealth, 2 Va. Cas. 128; People v. Cæsar, 1 Parker, 645 ; Morgan v. Pettit, 3 Scam. 529; The State v. Haskell, 33 Maine, 127 ; People v. Burke, 11 Wend. 129 ; Lewis v. Commonwealth, 2 S. & R. 551 ; People v. Flanders, 18 Johns. 164, * Ante, $ 554.

proceeds simply on the error, that the murder is not complete where the blow is given.

$ 600 a. Thus we have embraced, within a single chapter, many questions of vast magnitude, and immense national importance. Some of these questions are more fully discussed in the works of writers on international law; but the briefer view here given will serve, at least, to direct attention to the principal points. And even some of these points may be found to stand more distinctly in this simpler picture, than when adorned by superfluous words.


« ПредыдущаяПродолжить »