
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    The State v. Harkness.
    An indictment cannot be sustained under the act of 1769, for receiving* the meat, of cattle which had been stolen. By the'act of 1789, stealing cattle is punishable as a misdemeanor merely; and, the act of 1769 applies only to cases in which the principal has been guilty of a capital felony. [Vide acts of 1829, p. 40.]
    An indictment under the act of L769, for receiving, must state the nature of the felony, burglary, or theft, of the principal, that it may appear cer-. tainly, that it is a capital felony, admitting of accessaries.
    The defendant was tried in Sumter district, before Brevard, upon an indictment which charged him with receiving five quarters of beef, knowing the same to be stolen, contrary to the act of assembly, in such case made and provided, it appeared, from the report of the case, and of the evidence adduced upon the trial, that certain cattle were taken feloniously by a negro, and there was reason to believe, at ihe instigation of the defendant, and driven to the place where the defendant resided, at which place they were killed ; and the meat, being the meat of the same cattle, was found concealed in the house of the defendant, and in an out house under his charge, under such circumstances as to leave no doubt of his guilt.
    The jury found him guilty; whereupon, a motion was made for a new trial, and in arrest of judgment, which was argued by Falconbr, and Simons, for the prisoner, and Wilds, fc'olicitov, for the State. For the prisoner, it was insisted, that the act of 1789, P. L„ 486, against cattle stealing, repeals the act of 1769, P.L. «74, against, receiving stolen goods, so far as the same respects cattle. That the act of 17h9, repeals the common law as to cattle.stealing, and change', the otfe ce from felony lo a misdemeanor, punishable by film, unless the off nder should be unable to pay the same. That the intention of the act was to abate the rigor of the common law in the punishment of eattle-steali'.g: and, inasmut h as it would-contradict a well settled rule and mixim of criminal law, to punish an accessary with greater seventy than his principal, the acce- snry i,i this case, the receiver, could not be punished as a receiver of stolen goods, according to the act of 1769, by which act ho would be subj-ct to a much severer punishment than the xhiei himself, by whom the cattle were stolen. That the rules of common law, which are founded in reason and natural justice, ■must serve to guide us in our construction of statute law ; and, where two legislative acts are in opposition, and repugnant to each ■ether, they can. ot both stand, hut the latter icpeals the former. It ■was further contended for the prisoner, that as it appeared in evidence, that, the principal thief, the negro who stole the cattle, might have been taken and prosecuted, the prisoner could not be prosecuted tor a misdenie.i or for receive g the thing stolen ; because, the words of tne act of 1769 are, “ provided, such princip >1 felon cannot he take i.” Cued Post. C. L. 373, 4 Bl. Com. 38, 132. It was also contended, that the goods stolen, in the contemplation of the act, must he goods nksu and stolen burglariously, as the aci has- relitm i to burglars, and die proviso of the act speaks of burglary. Also, tbar it was not beef which was stolen, as theinuicmietit states, hut cattle.
    On tile o'her side it was urged, that the thing laid in the indict-meat as siol. o, and received, was beef, and not cattle, and therefore, the net ¡789 does not apply. That the words of the Act of 1769 “ provided the principal cannot he taken,” means provided he has not been take.) prosecuted : and, that a conviction, for the misdemeanor in receiving stolen goods exempts the offender from punishment as accessary, in case the principal felon should after-wards be token ...ed convicted. Cited Leach, 107, King v. Wilks. In the construction of the Stat. 1 Ann. st. 2, c 9, § 2. and 5 Ann. c. 31, and 3 & 4 W. &, \i. c, 9. § 4, the substance of which is con. tained in the act of 1769. other goods, besides such as are taken burglariously, have been held to be within the acts, being within the same mischief; and, therefore, within the equity of the statute.
   Waties, J.

expressed the opinion oí himself, and of Gkihke, J. that the goods received criminally within the intent and meaning of the A. A. of 1769, must be such, the stealing whereof would a capbal felony, or they must be taken burglariously, inasmuch as *be act subjects the receiver of such stolen goods, as accessary, to the pains of death, which the legislature never could have intended as the punishment of an accessary in any offence less than capital. And besides, in petit larceny, and offences under the degree of felony, there can be no accessaries before or after the fact. 2 Hawk. 315, 3 Inst. 139, 4 Bl. Com. Accessaries follow the nature of their principals, and cannot be guilty of a higher crime, and ought not to suffer a greater punishment.

The indictment ought to state the nature of the felony, burglary, or theft, in order that it may appear certainly, that it is a capital felony, admitting of accessaries : for the act declares, that the receiver shall be proceeded against as accessary, except the principal felon should not be taken so as to be prosecuted and convicted ; and declares, that such accessary shall incur the pains of death. By the act of 1789, P.L. 486, any person convicted of stealing any cow, ox, &c. shall be subject to a fine or penalty of ten pounds sterling, for each cow, &c., and in case of inability to pay the same, shall be subject to publicly whipped. Now, to subject the receiver of the meat of such beasts to fiue, public whipping, and standing iu the pil. liary, all which the act of 1769 provides, as the punishment of the misdemeanor for receiving of stolen goods knowingly, would be dis. proportionate and unreasonable; and, therefore, could not have been intended by the legislature. The principal would be proceeded against as felonious only, and the receiver as a felon. Such a construction of the act would be contrary to reason, and the general principles of law.

Johnson, J.

expressed the same opinion, with some variations-He did not express any opinion as to the form of the indictment.

■ Trezevant, J.,

was of opinion that there was good ground for a new trial, but that the exceptions were not sufficient to arrest the judgment, viz : that beef was not the thing stolen, but cattle, and the indictment was not proved as laid. He did not give any opinion as to what should be set forth in the indictment, as to the felony of the principal.

Judgment arrested.

Present, Grimke, Watxes, Johnson, Trezevant, and Brevard, Justices ; Bast, J. absent.

Note. — See 2 Leach’s Cases, 660. King v. Baxter. Indictment for a misdemeanor on the 22 Geo, 3, c. 58, against a receiver of stolen goods. After vsrdiet, it was moved in arrest of judgment, on the ground that the indictment was defective, as it did not state, negatively, that the person who had stolen the goods had not been convi -ted. All the juuges were unanimously of opinion that the objection was not good.

See st 1 Ann. üt. 3, c. 9, P. L, 93. Principal admitted to benefit of clergy, yet accessary to suffer, as if principal attainted. Buyers and receivers of stolen goods punished by fine and imprisonment, although principal be not before convicted, and exempt as accessary.

St. 3 and 4 VV. & M c 9, P. L. 86. Buyers and receivers, declared accessaries after the fact, and punished.

Act of 1769, P. h. 273, 274. Whereas the crimes of burglary, and breaking open houses, &e. Any person who shall receive, &c , knowing, &e., or hari hour, &c., shall be taken and received as accessaries, and suffer death. (1'his copied from 5 Ann c 31.) Provided, if principal felon, who shall commit such burglary, or felony aforesaid, cannot be taken, so as to be prosecuted and convicted, lawful to prosecute for receiving, as fora misdemeanor; to be punished by fine, whipping, and standing in the pillory, &c.

The 5 Ann. c. 13, seems to be taken, generally, although it speaks of burglary, &c. Must be a felony which admits of accessaries; and extends not to petit larceny. Principal thief must be prosecuted to conviction, if amenable. For receiving, &e,, the punishment is at the discretion of the judge. But see 5 Ann c. 13. Pine and imprisonment, or such other corpotal punishment, &e. See 2 East. C. L. 745, Fost. 373.  