State v. Underwood , 49 Me. 181 ( 1858 )

This case was argued, A. D., 1858, and continued for advisement. The opinion, concurred in by a majority of the Court, was drawn up by

Hathaway, J.

The question presented by this case, is, whether or not stealing goods in a British Province, and bringing them; by the thief, into this State, and having them in his possession here, is larceny in this State.

The trial of a person indicted for larceny, at common law, must be had in the county in which it was committed, and, in legal contemplation, where goods are stolen in one county and carried into another, the offence may be prosecuted in either county, for every asportation is, in law, a new caption. 3 Greenl. Ev., (8th ed.,) § 150, and notes.

" He who steals nay goods from one who had stolen them, may be indicted as having stolen them from me, because, in judgment of law, the possession, as well as the property always continued in me; and he who steals them in the county of B, and carries them into the comity of C, may bo indicted in the county of C, because, the possession still continuing in me, every moment’s continuing of the trespass is as much a wrong, and may come under the word cepit, as much as the first taking.” 1 Hawk. P. C., c. 33, §§33 and 52.

" As the property in the goods stolen always remains in the true owner, unaltered by the wrongful taking, every carrying away is a new trespass. Hence, it follows that the venue may be laid in any county into which they are conveyed, as the offence of taking and converting is there in itself complete.” Waterman’s Archbold, p. 69, note 2 ; Commonwealth v. Dewitt, 10 Mass., 154, Rand’s ed.; State v. Douglas, 17 Maine, 193; State v. Somerville, 21 Maine, 14.

For the same reasons, if a person steal goods in another State, (one of the United States,) and bring them into this State, he may be indicted and convicted of larceny here. Commonwealth v. Collins, 1 Mass., 116; Commonwealth v. Andrews, 2 Mass., 14, which cases are authoritative here, having been decided before the separation of Maine from Massachusetts, and the doctrine has been since recognized as the law in Massachusetts, in Commonwealth v. Rand, 7 Met., 475, and in Commonwealth v. Uprichard, 3 Gray, 434, in which last case the Court made a distinction between the case of goods stolen in another State, and that of goods stolen in a foreign country, and decided that the bringing into Massachusetts, by the thief, of goods stolen in one of the British Provinces, and the possession thereof, by 1dm, in Massachusetts, is not larceny in that Commonwealth. In delivering the opinion of the Court, in that case, Mr. Chief Justice Shaw said, "laws to punish crimes are essentially local and limited to the boundaries of the State prescribing them; the commission of the crime in Nova Scotia was not a violation of our law; this indictment proceeds on that ground, and alleges the crime of larceny to have been committed in violation of the laws of this Commonwealth, and within the body of this county. It is only by assuming that bringing stolen goods from a foreign country into this State makes the act larceny here, that this allegation can be sustained; but this involves the necessity of going to the law in force, in Nova Scotia, to ascertain whether the goods were stolen, so that it is by the combin'ed operation of the force of both laws, that it is made felony here. It is said that they commit a new theft, by the possession of stolen goods, in our jurisdiction. Bnt, what are stolen goods ? Are we to look to our own law, or to the law of Nova Scotia, to determine what is a felonious taking ? What is the animus furandi, and the like ? If we look to the law of Nova Scotia, and that law is different from ours in defining and prescribing theft, then we may be called on to punish, as a crime, that which wonld be innocent here. If we look to our own law, then a talcing and carrying away of goods in Nova Scotia, nnder circumstances which would not ■ be criminal there, might be punishable hei’e.” If this reasoning of the learned Chiéf Justice were well founded and correct, it wonld apply, with equal force, to the case of goods stolen in another State, as to that of goods stolen in a foreign government, for in their administration of criminal law, the several States are sovereign, and in their respective jurisdictions, and in the laws which regulate their internal^police, they are as foreign to each other as each State is to foreign governments. But it is not correct to say there is a necessity of going to the law in force in the foreign country, from which the goods were brought, to ascertain whether they were stolen.

The defendants were charged with violating the laws of Maine. The allegations in the indictment were, that they stole certain goods, in the county of Washington, the property of a certain person named. It was necessary for the government to prove the property in the goods, and all the material allegations in the indictment as alleged. It was incumbent on the government to prove that the defendants actually took and carried away the goods feloniously in that county, or had such felonious possession of them, there, as would, according to the laws of this State, constitute "in legal contemplation,” a felonious caption.

The laws of the foreign country are not included among the elements which constitute the crime for which the defendants were indicted. They were not charged with violating the laws of the foreign country, and those laws could not be legally introduced on the part of the prosecution, in the proceedings against the defendants. Whether or not, the defendants wore guilty of stealing the goods, must be first determined, according to our laws concerning larceny, and, if they were thus guilty, then the guilty possession of the goods here, was larceny here. But if the taking and carrying away of the goods, in the foreign government, was not in violation of the laws, there, and the defendants thereby became the lawful owners of the goods there, before they brought them to Maine, that would have been matter of evidence at the trial, which would have disproved the allegation in the indictment, of property in the former owners, and the prosecution must have failed. Without noticing particularly the various decisions of the courts of the several States, upon this subject, it is sufficient to say they have not been uniform.

In Vermont, it has been held that, where property was stolen in Canada and brought by the thief into Vermont, the thief might be indicted and convicted in that State; and such we hold to be the law in this State, in accordance with well established principles, applicable to prosecutions for larceny of property stolon abroad and brought by the thief into any county in the State; and such we had understood to be the law in Massachusetts, until the decision in Commonwealth v. Uprichard, before cited. In the People v. Burke, 11 Wend., 129, the defendant was convicted, in New York, for larceny of money there, which he had stolen in Canada and brought into New York. This conviction was under the statute which seems to have been enacted in consequence of a decision of the Court in that State, that, by the common law, such conviction would be unauthorized. In delivering the opinion of the Court in that case, Mr. Chief Justice Savage said: — "It is not the larceny in Canada which we punish, but the larceny committed in- the State of New York. The offender may be punished in any county where he carries the goods, as he is guilty of stealing wherever he has them. Tim principle was, in Massachusetts, without the aid of a statute, applied to the case of property stolen in another State and carried into that State.” We do not perceive any difference in the applicability of the same principle, to the case of property stolen in a foreign country and that of property stolen in another State. Maine is a border State. Many of the inhabitants of the frontier towns are engaged in business which renders it necessary for them to have and to use their property on both sides of the line. Our treaty of extradition with England does not embrace persons charged with larceny, and, highly as we respect the decisions of the learned court of our parent Commonwealth, we are not dis- ■ posed to depart from what we understand the law to be in this State, by adopting the doctrine of the Commonwealth v. Uprichard as law in Maine, — the more especially, when the consequence would probably be, either to render our border towns places of refuge for thieves, who might obtain a livelihood by stealing the property of our citizens and others, over the border, with every facility for a quick, and therefore a safe return to their places of retreat, on this side of the line, where they might enjoy the fruits of their pilfering and plunder with impunity, or else, to cause a legislative enactment, as was the case in New York, which would, undoubtedly, make the law what, without the aid of the statute, we understand it to be now.

Judgment on the verdict.

Tenney, C. J., Appueton and Cutting, J J., concurred. Davis, J., concurred, in the result.

Davis, J.

It was well settled in Massachusetts, before our separation from that Commonwealth, that a person stealing goods in one State, and carrying them into another, may be convicted of the larceny in the latter. If the question were now raised for the first time, I should certainly dissent from the doctrine. I do not think it can be sustained, either from principle, or by the weight of authority. If this Court would deny the soundness of it altogether, and sustain the exceptions on that ground, I would concur in the decision.

But, if we conclude that we are bound by the.early Massachusetts decisions, I see no way but to apply the doctrine to this case, and overrule the exceptions. The distinction which Siiaw, C. J., attempts to draw in Commonwealth v. Uprichard, 3 Gray, 434, between the case of larceny in another State, and in a foreign country, is, in my judgment, entirely without any foundation. If a conviction can be sustained in the former case, I think it must be in the latter. And, until we are ready to reject the doctrine in both classes of cases, I think we should uphold it in both. I therefore concur in overruling the exceptions.