
    *William S. Hamilton v. The State of Ohio.
    A person having possession, in this state, of property which he had stolen in another, may he convicted here of larceny.
    This is a writ of error, to the court of common pleas of Lawrence county.
    The plaintiff in error was indicted for horse stealing. The court charged the jury that if the horse was stolen by the accused in the State of Illinois, and brought by him into the State of Ohio, he might be convicted of the crime of horse stealing in this state. This charge is claimed to be erroneous.
    LeGrand Byington, for the plaintiff in error:
    The doctrine of a new larceny for every fresh asportation, as known to the common law, is confined to the limits of the sovereignty, and can not be extended beyond it. This is supported by the following considerations:
    1. The grade of the offense, the mode of trial, the quantum of punishment, and the process of expiation, would all be liable to be varied by the offender crossing a state line.
    2. It would subject the offender to trial in a tribunal powerless to compel the attendance of witnesses necessary to establish the time, manner, and° place of the original taking, and to explain the possession.
    3. It would render nugatory, as to this offense, the act of Congress providing for the surrender and delivery of fugitives from justice.
    4. It would abrogate the provision of the constitution that no one “shall be twice put in jeopardy for the same offense,” for the record of conviction or acquittal would not be binding in another state.
    5. *It subjects a person to penalties for an act not denounced by the laws of this state.
    All crimes punishable by the laws of this state are statutory. They can not exist independent of statute. The penalties are prescribed by statute; but in this state there is no statute making it an offense to possess property stolen in another or prescribing any punishment for such offense. Nor can it be necessarily presumed that stealing a horse in Illinois constitutes there an offense of the same grade and subject to the same penalties as in this State. Necessity furnishes no ground for our courts to assume jurisdiction in such case. For the act of Congress has provided ample means whereby an offender against the laws of one state found within the limits of another can be reclaimed and brought to justice.
    It is not sanctioned by the common law; for a larceny committed in Scotland or Ireland could not be tried or punished in the English courts until acts of parliament, 13 Geo. III, ch. 31, 54, and 44 Geo. III, ch. 92, 57, were passed. 4 Chitty’s Blackstone, 25, note 12.
    It has also been held, in various states in this Union, that a person can not be convicted of larceny upon bringing into one state property stolen in another, as in the cases of the People v. Gardner, 2 Johns. 477; People v. Schenck, 2 Johns. 494; The State v. Brown, 1 Hayward, 100. These cases are cited and referred to in 1 New York Digest, 102; 2 Russell on Crimes, 176, note 1.
    The charge of the court, therefore, is not sustained by the statute, the only foundation for criminal jurisdiction; and it is opposed to the common law and the practice in other states.
    S. M. Tracey, for the state:
    The cases in 1 Mass. 116; 2 Mass. 14; 5 Binn. 617; 3 Conn. 185, and 1 Root, 69, sustain the charge of the court.
    Of the cases cited on the other side, that of Gardner, 2 Johns. 477, is the loading case in this country. It is of *no authority, per se, because the court assign no reasons, but merely refer to 2 East’s Pleas of the Crown, 774, tit. Larceny and Robbery, sec. 157. East here states the common-law doctrine, “that 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. To this, however, there are some exceptions; as where the original taking is such whereof the common law can not take cognizance. And the same exception prevailed till lately in cases where the original taking was in Scotland,” citing Rex v. Anderson et al., MS. case. “ But that by the statute (13 Geo. III), the exception had ceased to prevail. This statute of 13 Geo. III is declaratory of the common law doctrine.”
    Gardner’s case is not sustained by the authority to which it refers, and consequently imposes upon New York, also, the necessity of enacting a statute declaratory of,the common law. 11 Wend. 129. •
   Lane, C. J.

The question on the record is not new, but has often arisen here and elsewhere. In Tennessee, Kentucky, and Pennsylvania, possession, by the thief, of property in one state which has been stolen in another, is not held sufficient for conviction. Such has been the doctrine in New York, although against the opinion of a late chief justice; but the power to convict, in such cases, has now been given by statute. In Massachusetts and Connecticut, such convictions have always been sustained. In England, the original taking must be within the kingdom.

A majority of the court entertain the opinion that a long-sustained practice in the criminal courts of this state has settled the construction on this point and established the right to convict in such cases. But, if not settled by usage, we feel free to choose, between these conflicting practices, a course best sustained by analogy and best calculated to promote justice.

*It would afford a large immunity for crime if thieves from other states were exempted from any other penalty than the remote risk of being returned to the place where the crime was first committed. We feel no scruples in inflicting his punishment here, and are justified, as well by the cases cited as by holding each continued possession, in our jurisdiction, of property stolen within another, as a crime well deserving the penalty of the law.

Judgment affirmed.

Read, J.,

dissenting. In this case I am unable to concur with my brethren in the legal proposition, that a person stealing property in a sister state or a foreign jurisdiction, and bringing it within the State of Ohio, may be here indicted and punished for the larceny. It is from no over-sympathy with the criminal, but a belief that the law will not authorize this conviction. He may be sent back to the state where the offense was committed and there punished, but not here.

This question is not new. It has been held that larceny committed in one of the United States is not punishable in another, although the thing stolen be brought into the latter state. Such are the decisions in Pennsylvania, New York, Tennessee, and North Carolina. State v. Brown, 1 Hayw. 100; People v. Gardner, 2 Johns. 477; People v. Schenck, Id. 479; Commonwealth v. Simmons, 5 Binn. 617; McCullough’s case, Rogers, 45. To the contrary, the Commonwealth v. Collins, 1 Mass. 115; Commonwealth v. Andrew, 2 Mass. 14; State v. Ellis, 2 Conn.

The State of New York has since provided, by statute, for punishing such possession within her limits, upon which the decision in 11 Wend. 129, was made. True, Judge Savage remarks that it was his opinion such ease might be punished prior to the statute. But it must be recollected that he speaks in reference to himself as prosecutor, as he prosecuted the case of the People v. Gardner, when the court refused to sustain him.

*Upon what principle can such conviction be sustained ? Is it upon a constructive new taking in every state where the thief may be found in the possession of the thing stolen? This principle was applied to the possession of the thing stolen, at common law, in every county where the thief might be found in such possession, to authorize conviction for the original theft, but never as between independent jurisdictions or states. At common law, if a person stole goods in a foreign state, or even in Scotland, Ireland, or the Isle of Jersey, or at sea, and brought them into England, he could not, upon a constructive taking, be punished for theft in England. To meet cases within the united kingdom the statute of 7 and 8 Geo. IV, ch. 29, sec. 76, was passed. Even now, persons stealing within foreign jurisdictions or states, and found in possession of the thing stolen, are not punishable in England. Roscoe’s Crim. Ev. 589; 2 Eng. Crown Cas. 329.

Upon what principle can it be held, in Ohio, that a person found in the possession of a thing stolen in a sister state should be construed to have stolen the thing in Ohio? Not upon the common-law principle, for the common law espressly forbids it. Not upon a statute of this state, for there is none. Shall it be upon usage? This would be a novelty in a state where no man can be punished for a crime unless the offense be specifically defined by a statute of the state prescribing the exact punishment. Shall it be from the necessity of the case lest a rogue escape? Necessity con'ers no criminal jurisdiction, and is the well-known plea of tyrants.

If the conviction can only be sustained upon the ground that the prisoner actually stole the horse in Ohio, the reply is, he actually stole the horse in the State of Illinois. There must be an actual theft in Ohio, to violate our statute and to constitute theft — a taking and carrying away are both necessary. But there is no taking in Ohio. Withouta taking from the owner, there could be no larceny. To supply the want of an actual taking, it is contended that a mere taking is to be construed, from the wrongful possession, into a larceny, in every new jurisdiction where the property may be carried. Upon *which, then, is this prisoner convicted, the construction or the statute? To contend that every moment’s possession and wrongful detention of the stolen property from the rightful owner is, by the law, construed into a new and distinct taking or theft, might authorize the conviction of a man a hundred times for the same theft; for, if they are distinct thefts, conviction in one will be no bar to a conviction for the others. Now, at common law, whence this constructive doctrine is derived, it is only so held to give the count}'- where the thief is taken with the goods, jurisdiction to try and convict him of the one original theft, and this is a bar to any other conviction. The law does not make distinct larcenies by construction, but it is a mere fiction to give jurisdiction to the county. This construction is merely to give jurisdiction, and not to divide it and make one larceny into many; and this, too, merely to try and punish him under the same law which he violated in committing the theft. Apply this to different states, with laws prescribing different punishments for larcenies, and having the right to punish all offenses committed within their limits, and what follows ? You do not, by this construction, give jurisdiction to try the thief under the laws where the theft was committed, but by construction draw the offense to a new jurisdiction, and under a different law prescribing a different punishment.

The construction, then, creates the offense, when the statute only can do it, and creates a crime under a new law, instead of conferring jurisdiction to try tbe accused under the law which he has violated, It amounts to this : that there is a new larceny in each state where the thief may go with the property, and that he may be punished for tbe same larceny as many times as he may have been in different states with the thing stolen; for prosecution and conviction in one state is no bar to a prosecution and conviction in another. And, hence, a sort of custom, usage, or legal inference overturns, not only the principles of common justice, but the fundamental principle that a man shall be punished but once for the same offense. But will it be said, there is a great evil in permitting thieves to *live within our borders in the guilty possession of property which they have stolen in another state? True, but they must be delivered up if demanded ; and it would be very easy for the legislature to pass á law to punish a thief for having in his possession, within this state, goods which he has stolen in another. This the State of Now York has done, and so may every other state; and I trust that our legislature may pass such a law. The question is not whether there should be some law upon the subject, but whether there is any? And, feeling clear that there is none, I hold the prisoner to be confined without legal authority; and, moreover, that this court can not confer such authority. Even if it be doubtful, upon all principles of jurisprudence, that doubt should be resolved in favor of the prisoner. If the state may rely, for conviction, upon the usages of some states in which such convictions have been held to be right, why may not the prisoner rely upon the authorities in other slates where such convictions have been held to be wrong?

No principle of the common law warrants this conviction; no statute authorizes it; and, clearly, no usage or custom- can confer such authority, especially when it violates the soundest principles upon which criminal justice is known to be administered, and authorizes a man to be convicted more than once for tho same offense.

My confidence in my brethren would have induced me, if my convictions as to the law on this subject had not, in my own mind, been perfectly clear, at least to have acquiesced, deferring my doubts, if I entertained any, to their opinion.  