
    ALSEY AND PHIL. (freedmen) vs. THE STATE.
    [INDICTMENT EOR STATUTORY OEEENSB OE BRINGING INTO THIS STATE’ PROPERTY STOLEN ELSEWHERE.]
    1. Sufficiency of indicimient, m descripUon of offense. — A count in an indictment, which charges that the defendants “did feloi 'ously take, steal, and lead away two mares, the property of H. II., A. nl., J. M. M., and J. M. W., in the State of Mississippi, and brought the same into the county of Tuskaloosa in the State of Alabama”; or “the property of H. H., A. M., J. M. M., and J. M. W., known as H. M. & Co., in the State of Mississippi, and brought the said mares into the county of Tuskaloosa,” &c., is fatally defective, because it does not show with with sufficient certainty that the larceny was committed in Mississippi.
    FROM tbe Circuit Court of Tuskaloosa.
    Tried before tbe Hon. Wi. S. Mudd.
    The indictment in tbis case was found in November, 1865, and was in tbe following words: “Tbe grand jury of said county charge that, before tbe finding of tbis indictment, Alsey, a freedman, and Pbil., a freedman, did feloniously take, steal, and lead away two mares, tbe property of Harrison Hale, Abram Murdock, John M. Morgan, and James M. "Wesson, in tbe State of Mississippi, and brought tbe same into tbe county of Tuskaloosa in tbe State of Alabama, of tbe value of five hundred dollars; contrary to tbe form of tbe statute in such cases made and provided, and against tbe peace and dignity of tbe State of Alabama. And tbe jurors aforesaid charge, that tbe said Alsey, a freedman, and Phil., a freedman, did feloniously take, steal, and lead away two mares, tbe property of Harrison Hale, Abram Murdock, John M. Morgan, and James M. Wesson, known as Hale, Murdock & Co., in tbe State of Mississippi, and brought tbe said two mares into tbe county of Tuska-loosa in tbe State of Alabama; contrary to tbe form of tbe statute,” &c. Tbe defendants interposed no objection to tbe indictment, and went to trial on tbe plea of not guilty. Tbe jury returned a verdict of guilty, and sentenced botb of tbe defendants to death by banging. A motion in arrest of judgment, on tbe ground that tbe verdict was against tbe law and evidence, was Snade, and overruled. There is no bill of exceptions in tbe record, and tbe cause is brought up by writ of error.
    Wi. E. Smith, for tbe prisoners.
    John W. A. Sanpokd, Attorney-General, contra.
   A. J. WALKER, C. J.

Tbe indictment seems to have been framed in reference to section 3138 of tbe Code, which is in tbe words following: “Any person, who feloniously steals tbe property of another in any other state or country, and brings tbe same, or any portion thereof, into this State, must, on conviction, be punished, in tbe same manner, and to tbe same extent, as if tbe property thus brought into [it] bad been stolen in this State.” Tbe punishment was ordered by tbe court below in conformity to tbe act of October 7th, 1864, by which tbe larceny of “any negro, horse, mare, gelding, colt, filly, or mule,” is subjected to tbe punishment of death, or tbe penitentiary, at tbe discretion of tbe jury. We thus have tbe anomaly of a crime declared by one statute, and punished under another. We are not sure that tbe indictment in such a case ought not to be found under tbe statute which prescribes the punishment, instead of that which describes tbe c -mis was certainly tbe case under tbe law as it existen oefore tbe Code.—Murray v. State, 18 Ala. 727; Ham v. State, 17 Ala. 188; Williams v. State, 15 Ala. 259. There is a slight variation of language in section 3138 of tbe Code, from tbe section of tbe old Penal Code upon tbe same subject. Whether this variation will justify a different practice from that which was judicially sanctioned before tbe adoption of tbe Code, we shall not inquire, because tbe question has not been argued, and we think tbe indictment is fatally defective, even though it is admitted to be framed under tbe proper statute.

Tbe first count of tbe indictment charges, that tbe prisoners “did feloniously take, steal, and lead away two mares, tbe property of Harrison Hale, Abram Murdock, John M. Morgan, and James M. Wesson, in the State of Mississippi, and brought the same into the county of Tuslcaloosa, in tbe State of Alabama, of tbe value of five hundred dollars,” &c. Tbe law of criminal pleading, as universally accepted, requires tbat tbe ingredients of tbe offense should be stated with certainty and precision.—Nugent v. State, 19 Ala. 540. Tbe words, “in tbe State of Mississippi,” do not point with certainty and precision to tbe larceny. Tbe arrangement of tbe words and members of tbe sentence is such, tbat “in tbe State of Mississippi” may as well, perhaps better, be understood to refer to tbe owners of tbe property, and fix their location. It can only be made out by inference and argument tbat tbe larceny was committed in Mississippi, and tbat is not enough in criminal pleading.—Nelson v. State, 6 Ala. 394, 398. Tbe indictment would have been certain and perspicuous on this point, if it bad alleged tbat the' accused “did, in the State of Mississiptyi, feloniously steal,” &c. But this is not averred, nor is there any equivalent averment.

There are other criticisms made upon tbe first count of tbe indictment by tbe counsel of appellant; but we pass them by without consideration, because we deem tbe objection already noticed fatal to it.

Tbe second, and only remaining count of tbe indictment, is obnoxious to tbe same objection.

Tbe judgment of tbe court below is reversed, and tbe cause remanded, in order tbat the prisoner may be again indicted; and be must remain in custody until legally discharged.—Beasley v. State, 18 Ala. 535; Pleasant v. State, 17 Ala. 190.  