
    Simmons against The Commonwealth.
    
      Philadelphia, Saturday, July 17.
    
    A person who stea's g'°°dsm iHjotJlÉl’ St&tC and brings them int0 not be indicted f°r the feoftreateías aid-8 iptwefrom jus-
    THE plaintiff in error was indicted at a Mayor’s Court for the city of Philadelphia in March 1812, for feloniously J % * ' d stealing and carrying away twenty-five silver spoons and other articles, the property of E. I. Dupont; and upon the trial the jury found a special verdict which stated, “ that the defendant “ did feloniously steal, take; and carry away all the goods « chattels mentioned in the indictment (except six shirts “ the value-of seven dollars) -within the state of Delaware, “ and that he brought the same into the city of Philadelphia, “ and within the jurisdiction of this Court; but whether See.”
    Upon this verdict, the Court being of opinion that the defendant was guilty in manner and form as he stood indicted, adjudged him to restore the. property stolen, or pay the value to the owner, and to undergo a servitude at hard labour for the space of three years; and upon this judgment a writ of error was brought in this Court.
    The question was argued by
    
      Phillips for the defendant in error, and the Attorney General (Ingersoll) for the Commonwealth.
   Tilghman C. J.

This is an indictment for larceny. The property was originally stolen in the state of Delaware, and afterwards brought by the thief into this city. The jury found a special verdict; and the question submitted to the Court is, whether under such circumstances, an indictment can be supported in the Mayor’s Court. The point has never been expressly decided; but it is understood, that a practice has prevailed.iw# silentio, under which there have been convictions in several of the courts of the state. This practice was founded on the general principle, that possession in the thief amounts to a larceny in every county into which he carries the goods, because the legal possession still remains in the true owner, and therefore every moment’s continuance of the felony, amounts to a nezu caption and asportation. There is considerable subtlety in this principle. It was probably adopted for the convenience of trying the felon in the county where he was taken with the goods in his possession. For it is scarcely reconcileable to plain common sense to say, that the con tin uance of the possession amounts to a new taking. Itjsm fact but one and the same felony, and so it is considered in law; for if the thief, after carrying the goods from the county in which they were stolen, to another county, and after being indicted and convicted in the latter, should be again indicted in the former, he may plead the conviction in bar, which could not be done if they were different felonies. I consider the principle which I have mentioned as bordering upon a fiction, and although it is so well established as not now to be called in question, yet there is no reason why we should give it greater extent than it has received in the English common law from whence we took it. Now it was never extended by that law to cases where the original taking was without the kingdom. This is expressly stated by Lord Coke in 3 Inst. 113, and 13 Co. 53, in proof of which he cites Butler’s case in the 28th year of Elizabeth. It was the opinion of the Judges at that time, that no offence was punishable at com-" mon law, which was committed without the jurisdiction of the common law, that is out of the kingdom. This ancient doctrine has been adhered to in modern times, as appears in 2 East’s Cr. Law 772, where the case of The King v. Anderson is cited, in which it was determined by all the Judges in the year 1763, that no indictment lay in England for goods stolen in Scotland and brought into England. This was found inconvenient, and therefore, so far as respected goods stolen in Scotland, a remedy was provided by stat. 13 Geo. 3. ch. 31. But I have never heard it suggested that the English courts assumed a criminal jurisdiction in case of goods stolen beyond sea, and brought into England. It may be said to be inconvenient not to exercise jurisdiction in cases of goods stolen in one of the United States, and brought into another, and it appears to me that it will be inconvenient. But the legislature may at their pleasure apply the remedy, as the British parliament did. I feel myself treading on tender ground, when criminal jurisdiction is in question; and I confess that I had rather see a'hundred culprits escape, than extend such jurisdiction a hair’s breadth beyond its constitutional limits. The constitution of the United States provides for the case of an offender flying from the state in which the offence is committed. Wherever he is found, he may be secured and sent to that state for trial, on demand of the executive thereof. If we should punish him, he may be punished again in the state to which he may be sent; for certainly the courts of that state. are not bound to pay any regard to our proceedings. A conviction here is no bar to an indictment there. The different states are altogether as independent of each other in point of jurisdiction, as any two nations; and if murder committed in one state, should be prosecuted in another to which the murderer had fled, without the authority of an act of assembly, we should at once be shocked at the proceeding. In the Supreme Court of New Tork, it has been decided that larcenies committed out of the state, cannot be prosecuted within it, although the goods are brought there. 2 Johns. 477, 479. In the state of Massachusetts the contrary opinion has been held. 1 Mass. Rep. 116., 2 Mass. Rep. 14. It appears ho'wever that the Judges of Massachusetts relied very much on a decision in their own courts, by which they conceived themselves bound, and the case of the King v. Anderson, cited in 2 East from " a manuscript report, does not seem to have been known, because it is mentioned by Judge Sedgwick, that the only case relied upon as directly in point, was Butler’s case, 3 Inst. 113. If the point had ever been decided in this Court upon solemn argument, I should have been for letting it rest. But that not being the case, we must take it up as res integra, and I am of opinion that the Mayor’s Court had no jurisdiction, and therefore the judgment should be reversed.

Yeates J.

I was not present at the argument on the special verdict found upon this indictment, having been on that day confined to my chamber by indisposition; but I have been furnished with the notes of the cases cited, and of the arguments of counsel on both sides. The jury have found the prisoner guilty of larceny, in stealing twenty-five silver spoons of the value of 100 dollars, of the goods and chattels of Mr. Du Pont de Nemours, at Wilmington in the state of Delaware, and that he brought the stolen goods into the city of Philadelphia. The Mayor’s Court have decided that the facts thus found constitute a larceny here, in legal contemplation, and have sentenced the prisoner to an imprisonment at hard labour for three years &c. The question is, whether the offence charged against the prisoner is supported by these facts, so as to justify a conviction in this city.

Larceny is defined in the old books to be fraudulenta ohtrectatio rei alienee, invito domino. There must be a felonious taking and carrying away, in order to constitute the crime. Offences are local in their nature, and must at common law be tried in the county where they were committed.

There can be no doubt under the English authorities, that where a person steals goods in the county of B, and afterwards carries them into the county of C, he may be indicted in the county of C for the felony in the county of B. The reason given is, that the possession still continuing in the true owner, every moment’s continuance of the trespass is as much a wrong to him, and may come under the technical word cepit, as much as the first taking. 1 Hawk. c. 33. s. 9., 2 Hawk. c. 25. s. 38., 1 H. H. P. C. 507, 8. 536., 2 H. H. P. C. 163. But to this rule there is an exception, that where goods have been piratically taken on the high seas, and after-wards have been brought into some county in England, this is no felony punishably at common law, because the original taking was not an offence whereof the common law had cog-" nisance. 13 Co. 53, Butler’s Case, 3 Inst. 113.

It is objected by the counsel of the plaintiff in error, that ■Delaware, where' the offence was first perpetrated, being a sovereign independent state, forms likewise an exception to the rule; and that although a conviction and judgment in one county, rfiay be pleaded in bar to an indictment for the same offence in another county in the same state, yet the same would not hold where the sovereignties were completely independent on each other. The case of Rex v. Anderson and others (in 1763,) 2 East’s Pl.. Cro. 772, was contended to be similar in principle to the present. Where the original taking was in Scotland, it was adjudged that the felon could not be indicted in the county of Cumberland, where he was taken with the stolen goods. To remedy this defect in the law, the provisions in the fourth and fifth sections of the stat. of 13-Geo. 3. c. 31, were enacted. Reliance also has been placed on two decisions in the Supreme Court of New York in November 1807; The People v. Gardner, 2 Johns. 477; where a person stole a horse in the. state of Vermont, and fled into the state of New York, where he was apprehended with the horse in his possession: it was determined that the prisoner could not be tried in New York for the felony. The Court held, that where the original taking was out of the jurisdiction of the state, the offence did not continue and accompany the possession of the thing stolen, as it does in the case where a thing is stolen in one county, and the thief was found with the property in another county. The prisoner could be considered only as a fugitive from justicé from the state of Vermont. On the authority of this case one Schenck, who was indicted in the city of New York for stealing a gun, and the jury found a special verdict that the gun was stolen in the state of New Jersey, and brought by the prisoner into Nero York where it was found in his possession, the Court said that the prisoner was entitled to his discharge; but they ordered him to be detained in prison three weeks, and notice thereof to be given to the executive of New Jersey, and if the prisoner should -hot be demanded within that time, that he should be discharged. Ibid. 479.

The attorney general has insisted, that no solid distinction can be made between this case, and that wherein goods have been stolen in one county and carried into another county. In' " either instance the possession of the goods though stolen and carried away, in legal contemplation remained in the real owner. It would be highly inexpedient that such offences should go unpunished; and it is absihrd to suppose that a criminal in one state, passing its boundaries with the stolen articles in his hands, should escape with impunity. The invariable practice has been to try offences of this nature in this state, and the reason operates much more strongly since the adoption of the constitution of the United States. We are now become a federative republic. Two cases in the Supreme Judicial Court of Massachusetts have settled the law in that commonwealth in the manner it is now contended for on the part of the prosecution. Respub. v. Thomas Cullens, 1 Mass. Term Rep. 116, and Respub. v. Thomas Andrews, in March term 1806. The last was for receiving knowingly, goods stolen . in New Hampshire, which were brought into Massachusetts, was fully argued by able counsel, and received the unanimous decision of all the judges, who delivered their opinions seriatim. The doubts respecting the law, anterior to the British statute of 13 Geo. 3. c. 31, as expressed in its preamble, were adverted to and remarked upon; and the Court thought that upon principle, independently of the cases decided in Massachusetts, the common law doctrine respecting counties might well be extended by analogy to the case of states, united as these are under one general government. The questions in the New York cases, cited for the plaintiff in error, appear to have been submitted to the Court and decided without argument.

I have bestowed on this subject every attention in my power, and will at once say, that the chief difficulty which I had to combat, was the effacing of impressions formed in my mind from the practice alluded to by the attorney general in his argument. But I cannot agree with him, that the principle which he has contended for, is fortified by the present constitution of the United States. The provisions of that instrument exclude the idea of the jurisdiction insisted on, and supersede the necessity of exercising it, least criminals in other states should escape with impunity. We find in the second section of the fourth article of the federal compact between the several states, that a person charged in any state “ with «treason, felony or other crime, who shall flee from justice “ and be found in another state, shall on demand of the exe- “ cutive authority of the state from which he fled, be deliver- “ ed up, to be removed to the state having jurisdiction of the “ crime.” When the law is settled and ascertained, political expedience can have no influence on our judgments. We are bound to pronounce the law as we find it written. In criminal cases in particular, the party charged should suffer no other or greater punishment than the law imperiously enjoins. I cannot possibly suppose, that where it is said in some of the books, that the asportation of stolen goods into a different county, satisfies the word cepit, by amounting to a new taking, any thing more is meant than it being a continuance of the first unlawful act, it is punishable in either county; not that new and distinct offences arise in every county into which the goods are carried. Were it otherwise, the original unlawful act might be punished as often as the number of counties into which the criminal removed the goods; which would be a plain violation of the great principle of natural law and political justice, that a man should not be punished twice for the same offence. Upon this ground it was held, where a piracy had been committed at sea, and the goods piratically taken brought into England, the offence was not punishable in a court of common law; if so prosecuted, the admiralty, having jurisdiction of the original offence on the high seas, might also proceed against the parties charged, who would thus be subjected to a double penalty for the same crime. 13 Co. 53., 3 Inst. 113.

The distinction between the principal case and stolen goods carried from one county into another in the same state or kingdom, appears to me sufficiently obvious. In the latter instance, general laws pervade the whole government, and prescribe penalties on distinct offences. There autrefots convict in one county, may be pleaded in bar to another prosecution for the same offence in another county. But not so as between distinct and independent states, governed by different laws. Our laws have no influence in the sister state of Delaware, and so vice versa. A conviction here of an offence against the peace and dignity of this commonwealth, cannot be pleaded in bar to an indictment in Delatvare for the same offence laid against the peace and dignity of that state. Besides, the penal codes of the several states greatly vary. We must presume that the punishments 'annexed to crimes in Delaware, are properly calculated to promote the peace and good order of society in that state. If the penalty prescribed to a larceny is more severe than that in Pennsylvania for the like offence, then it is clear, that the defendant does not receive an adequate punishment upon his conviction here of the crime committed in Delaware; but if on the other hand, the punishment here is the most severe, it is also clear that upon such conviction, he would be subjected here to a greater penalty than the laws of the country where the offence was perpetrated, in such case inflicted. The crime must be viewed retrospectively.

Scotland, for the purposes of the present argument, stood in the same political relation towards England in 1763, as Delaware now stands toward Pennsylvania. They were different kingdoms, governed by distinct laws, but were united under one common head for national defence, and in support of their general interests. The case of Rex v. Anderson et al. fully established the law, that antecedent to the stat. of 13 Geo. 3. c. 31, where a felony was committed in Scotland, and the stolen articles were brought by the felon into an English county, he could not be tried in such county. It of course settled the principle contended for by the counsel of the plaintiff in error, respecting goods stolen in one county and carried into another, that it relates merely to the jurisdiction of different courts acting under the same authority, and governed by the same rules. The reasons of the judges are not detailed in the report of the case in 2 East's Cro. Law 772, but most probably they are of the nature I have already mentioned. It appears that the case was heard first at Carlisle Summer Assises 1763, before Gould Justice, and afterwards before all the judges of England in November following.

The stat. of 13 Geo. 3. c. 31, was referred to in Respublica v. Andrews, but this case was most probably overlooked. It is impossible to suppose that it was cited, when we advert to the expressions of Parker and Sedgwick Justices. The latter in 2 Mass. T. R. 20, says, “ all that can be inferred from the “stat. of 13 Geo. 3. c. 31, is that there were doubts or differ- “ ent opinions on the question. If there had been a decision “ against the jurisdiction, it would not have been said that “ doubts existed, but that the Wirv needed alteration.”

The principle upon which the case of Anderson et al. was decided, most strongly influences mv mind in this instance. 1 cannot distinguish between them. ,If evils or inconveniences result from the doctrine I have laid down, the legislature alone can furnish an adequate remedy. My opinion is, that the judgment of the Mayor’s Court be reversed. At the same time I much approve of what was done in New York in the case of Schenck; that the prisoner should be detained in gaol a reasonable time, and notice thereof be given to the executive of Delaware, and if he should not be demanded within that period, that he should then be discharged.

Brackenridge J.

It is laid down simply and correctly, 2 East's Crown Law 771, “ That the possession of goods stolen by the thief, is a larceny in every county into which he carries the goods, because the legal possession still remaining in the true owner, every moment’s continuance of the trespass and felony, amounts to a new caption and asportation.” On which I observe, that it is not because it is a continuance of the trespass committed in another county, but because it constitutes of itself an original and independent trespass. The question of actual possession originally in the owner, comes in only by way of evidence of property, and puts it upon the accused to shew how he came by the goods. It is the having the goods which I prove mine, and the having them animofurandi, a principal badge of which is concealment, that grounds a charge of felony, and subjects to the jurisdiction of the county in which the thief is found to have had the goods. It is on this principle alone of a new and independent trespass, that the jurisdiction of another county into which the goods are carried can be supported. For though evidence is admitted of actual possession in another county, yet it must be of a larceny in the proper county where the prosecution is, that a conviction can take place. But will evidence be admitted of actual possession in a foreign country, in order to support the constructive or legal possession necessary to constitute the trespass and felony in that to which the goods may be carried? I am not able to say why it should not. In that case-a- foreigner whose property has bt en taken beyond sea, and: imling it in the hands of an English thief, might prosecute a»'. ,-mvict. I can see no rule of general convenience or pu- ct policy why he should not. But * e hear nothing in the English books of persons convicted lor clandestinely taking goods in other countries, and stealing them by carrying them ‘into England. It may be that the English Courts have not carried out the principle so far as to admit such evidence,had it been offered in any case. But there would seem no good reason why it should not be carried out in our country towards sister states, not that such a case strengthens the principle, but justifies the application. The being under one general government does not strengthen the principle, for that general government has no common law in this case, nor draws to it the common law of a state in this particular; but it is a reason of expediency and common utility, that the principle should be carried out in the application of it in the case of stolen goods brought by the thief from one state into another. Each neighbouring state would otherwise become a receptacle of stolen goods brought into it. Suppose an act of assembly to pass, that, in the case of stolen goods brought into this state from another, the thief might be prosecuted as for a larceny committed here. On what principle would this be, but that he might be considered as committing a larceny in this state, by that deprivation of possession which the true owner had sustained. I speak of the actual possession, and by that touch and handling of the goods, the contrectatio rei alienee animo fur andi, as Bracton expresses it. The exercising an act of ownerhip over such goods, withevidence of concealment and intention to steal, would make it a larceny within the state as to goods brought into the state, the legal or constructive possession still remaining in the original owner, and the law protecting that right. For “ in the case of a personal chattel, the possession in law follows the right of property.” 2 East 573. The moment that the true owner comes into the state, following the goods stolen, his right of possession attaches within the commonwealth, and the law will protect such property. It will punish, the trespasser. It will give him an action of trover and con- , version, where it is a trespass and bare keeping from him. Why not support a prosecution for a felony, where the contrectatio animo fur andi exists? It is no argument against this, that goods obtained by theft at sea, and afterwards carried into some county, are not the subject of the common law jurisdiction, for this is an exception to the general rule. 2 East 772. It is because the Admiralty jurisdiction draws it ad aliud examen. A distinct tribunal is constituted for such offences. It is the same in this country. But for goods felo • niously taken and brought from one state into another, there is no such tribunal. Nor can it be necessary that the goods be feloniously taken in the other state; for if they be obtained by a trespass and brought into the state, and there be a concealment here animo furandi, the law, if we are correct, would make it a felony and prosecute it as such. I admit that an implication arises from the absence of cases, or the silence of reporters, that in England the common law did not protect the legal or constructive possession, where the actual possession had not existed under the protection of that law. And the exception would seem to be recognised by the law as it respected Scotland before the union, and even after the union doubts would seem to have been entertained. The same exception prevailed till lately, where the original taking was in Scotland. 2 East’s Crown Law 772. “ It was ruled that a felon in such case could not be indicted in Cumberland, where he was taken with the goods.” But I recur to the principle, and lay aside the exception where there is no good reason for it. It is not what has been done, but what can be done consistent with principle, that I look to.

There is no implication contrary to this from the provision of the constitution of the United States, art. 4. sec. 2. u that a person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the .state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.” Because even in this case the owner of the stolen goods ought still to have his election to have the thief back, or to prosecute him here, if having taken the goods with him, and continued the felony, or as I would say, committed the felony de novo within our jurisdiction, he has put it in the power of the owner so to do.

On the argument of this case, there has been a reference to the understanding of the law from the usage on this subject. But I do not recollect that instances were produced of a prosecution for goods stolen in a neighbouring state, and brought here. Nevertheless’it is so consonant with principle and general convenience, what is more, with the safety of the community in keeping thieves and stolen goods out of the state, that I will not hesitate to sanction the doctrine, that a thief bringing his stolen goods here, may be prosecuted as committing a theft here, and guilty of an offence against the peace and dignity of this commonwealth. If the owner of goods ’ talc.-n in another state, and coming here, could not prosecute for a felony, neither could he maintain trespass, for that supposes a possession. He must allege a finding by the thief, and bring his action after demand made. If the thief is taken back to the state where he took the goods, and it is even made a part of his sentence on conviction, that he shall restore the goods, yet he has not the goods to restore, for they are in the state to which he carried them, and there he must be considered as having a right to detain them, so that they could not be brought forward at the trial to establish the identity and prove the theft. For though the executive of another state would be authorised to demand the thief, he could have no authority by the clause of the constitution to add a duces tecum of the goods stolen.

The principal thing that I find in the way of my doctrine from the English books, is the reason given, that “ 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 the original act was felony, -whereof the common law taketh knowledge.” 13 Coke 53. But this is applying the reason of another case to the present one, viz. that u larceny “ of goods at sea brought into a county,” could not be tried there, because the jurisdiction of the Admiralty Court had attached by the original taking, and the cognisance of any after act could not be taken by the common law. But in no other case except that of larceny, can there be á question about the jurisdiction of a county, where the offence was committed, though under the same common law, and the punishment the same. “ All crimes are local, and must be “ tried xvhere committed.” In the case of robbery, there can be no relation to the act begun, to give that county jurisdiction. The locality must be where the crime was consummated. This overthrows all notion of the reason being because the offence was under the same common law. I refer to Holt Chief Justice, 11 Mod. 12. One county is as distinct from another, as one country from another, in respect of the right of jurisdiction. Personal actions follow the person, and there is a fiction of the contract being in the county where the person is; but trespass quare clausum fregit must be in the county where the trespass was committed. And there is no fiction in a criminal case so as to- give jurisdiction. Upon what principle then but that of considering the having goods in one county and exercising, so to speak, the stealth over them, can give that county jurisdiction? By the ancient law, ‘f all offences were said to be done against the peace of the “ county; contra pacem vice comitisP 1 Black. 117. And though Alfred, to keep within the bounds of the universal or common law, gave the control to the king’s own courts, in consequence of which offences were laid to be contra pacem domini regis, yet it still remained a principle, “ that the trial of all “ causes civil and criminal must be in the very district where “the cause of complaint arose.” 4 Black. 411. Fiction in civil cases, as has been said, has dispensed with this as to actions purely personal, but in criminal never.

I therefore recur to the position which I think I have established, that it is not the carrying into another county the goods stolen, but the being considered as stealing in the new county the goods carried, that gives jurisdiction. What difference does it make where it is a new county into w¿úch they are Carried? Supposing it not to have been within the policy of the Courts of England to extend this principle to goods taken in another country, say Scotland, Ireland or even France, and the larceny continued under the jurisdiction of the common law, yet it would be a matter of great inconvenience to restrict the cognisance in such manner between one of these states and another separated by no sea, but a narrow river, or^ideal boundary, so easily passed or repassed in the asportation from one to another. And I say that no act of the legislature would do more than in affirmance of a principle, and as in the Scotch case “ to remove doubts.” For the common law of Scotland is not the common law of England, nor the mode of trial or punishment of crimes the same. The being therefore under the same common law, could have made no part of the reason of one county attaching the jurisdiction of a larceny, because a larceny of the same goods had been first committed in another county. An act of assembly is out of the question. For it could not provide that an act should be stealing where it was not, which would be the case, unless carrying stolen goods into the state was stealing within the state. As to an act providing that the bringing stolen goods into the state should be punishable, it would be a novel kind of misdemeauor, and of which we hear nothing in the intercourse of England, with Ireland, or with other countries. It would involve all the necessity of establishing the prior stealing, which would draw with it what was stealing in other countries. In that case the common or statute law of that country must come into view. No law of this state however framed could be made to reach in the shape of a prosecution for a felony, the bringing goods into the state. It would be made a misdemeanor only. I say no law could make it felony but in affirmance of the principle which I have laid down, that the concealing stolen goods within the commonwealth is a stealing, and against its peace and dignity. I incline therefore to support the prosecution.

Judgment reversed.

The Court at the same time directed the prothonotary to communicate the case of the prisoner to the executive of Delaware; and made an order for his discharge in three weeks, unless in the mean time, a demand should be made agreeably to the constitution of the United States.  