
    The State of Iowa v. May.
    1. New trial: hearsay evidence. Where, on the trial of a criminal cause, declarations made by a third person as to the corpus delicti, not in the presence of the prisoner, were received as evidence, and the other evidence touching that point was not very full or satisfactory, a new trial was awarded.
    2. Criminal law: larceny: intoxicatins liquors. It is not a good defense to an indictment for stealing intoxicating liquors, that the liquors stolen were being kept in violation of the law.
    
      
      Appeal from Clinton District Court.
    
    Thursday, June 7.
    The facts are stated in the opinion.
    
      Wm. R Leffingwell for the appellant.
    I. There is no evidence of the corpus delicti aside from the declaration of one West Smith, not under oath, and not in the presence of defendant.
    II. The- court erred in admitting the declarations of. West Smith that the liquors had been stolen. West Smith was a witness .who knew the fact if it existed, and he should have been called, but he was not, and no excuse is shown by the State why they did not call him. Williams v. The Rast India Company, 3 Bast, 192; Commonwealth v. Kinison, 4 Mass., 646; Commonwealth v. Littlejohn, 15 Id., 163; Rex v. Tend, 6 Carr. & P., 176; Rex v. Fellows (MSS.), cited in 2 Russ, on Crim., 122; Turner v. State, 5 Humph., 383; Carey v. State, ’7 Id., 499.
    . III. There is no proof that liquors found on May’s farm belonged to Borbes, or that they were ever taken from his store, or were ever there.
    IY. If the liquors in Forbes’ store “were kept there by him to be sold in violation of law, i. e., to be sold by the glass, and to be drank on the premises,” they were contraband, and were not property the taking of which would be larceny. Plummer v. Harbut, 5 Iowa, 308; Funk & Hard-man v. Israel, Id., 439.
    It is an elementary principle, that where trespass cannot be maintained an indictment for larceny will not lie.
    
      F. R. Bissell, Attorney-General, for the State, as to the last point stated by counsel for' the appellant,
    cited The State of Ohio v. Starkey, 6 Ohio, 266.
   Lowe, Ch. J.

Timothy May was indicted for stealing ten gallons of gin, ten of wine, ten of brandy, and thirty gallons of whisky, of the- aggregate value of ninety dollars, the property of one Hugh Forbes; was tried and convicted, which was followed by the sentence of the law upon him.

In appealing, his counsel objects, first, that the court, against the exceptions of the defendant, permitted a witness by the name of Jeremiah Shade to testify to the jury to the effect that one West Smith had said, that he, Smith, had been left in possession of the building, owned by Hugh Forbes, and that he, said Smith, claimed that at the time of the 17th of June, 1863, four kegs of liquor, to wit, one keg of gin, one keg of wine, one keg of brandy and one keg of whisky were stolen from the said building.

It is insisted that this evidence is objectionable on the score of hearsay, and should have been ruled out. Aside from these declarations of Smith, not made in the presence of the prisoner, the evidence as affecting the corpus delicti is not very full or satisfactory, and it is impossible for us to say how far this evidence may have influenced the jury in making up their verdict. Hence, we deem it best, under the circumstances, to award the accused a new trial for this cause.

There is still another question of evidence presented by the record, and in the argument of counsel, which, as the case goes back for a rehearing, should be settled r DY US. ^

At the trial, the defendant, by his counsel, proposed to prove that the liquor in question was kept by Hugh Forbes, the alleged owner, in violation of law, and for the purpose of being retailed by the glass, to which the district attorney objected, and the objection was sustained,, and exception thereto taken.

The competency of this testimony is urged upon, the ground that the liquors charged to'have been stolen were outlawed by the statute, when' held for the purpose which it was proposed to prove Forbes had them, and as such not entitled to legal protection; that to constituté larceny there must be a double intent to commit a trespass and to deprive the owner of his property; that trespass is one of the elements of the crime of larceny without which technically it cannot be committed; that under the statute á civil action in trespass for the wrongful'taking of such'property could hot be maintained, and, therefore, it is argued that liquors kept for sale in violation of the láw ¿annot be the subject of larceny,'&c.'

We admit the'force of this reasoning,'yet plausible as it seems in our judgment, it will not stand the test of scrutiny of principle or of ethics. If sound, then one offense will stand as ájustificatidn for the commission of another.

Larceny is á distinct crime from keeping liquors for sale contrary to the provisions of the statute; both,'to be sure,' are violations of law, but each has its Own spe'cifie and appropriate penalty, and each must be' dealt with by itself.

Although liquor as an article of traffic is prohibited, and is liable when kept' as such, to be seized and destroyed, nevertheless, until this is done, it is in its essential nature property. It may at any time be withdrawn as an article of trade, and kept exclusively for private use. ' It is' also confessedly ■ property in the hands of him who keeps if alone for medicinal, mechanical or sacramental purposes. Besides, it is a principle or rule of property, as old as the' common law itself, that the possession of one is good against all others, who cannot’ show a’ bétter right óf possession.

■ Hence, he who steals a stolen article of property from a' thief, may himself be convicted notwithstanding the criminality of the possession by his immediate predecessor in crime. 1 Hale, P. C., 507; Ward v. The People, 3 Hill, 309. In. 2d Bishop’s .Criminal. Law, section 690, it is; held, that whatever .is.produced by wrong is the subject, of larceny, the same as the products of right. Thus money received for intoxicating liquors, sold contrary to the inhibitions of a penal statute, may be stolen with the same consequence as any other money. This principle was ruled in the case of The Commonwealth v. Rourk, 10 Cush., 397. The same doctrine is substantially adopted and approved, 2 East P. C., 654; 2 Russell on Crime, 6 Am. ed., 89.

It is true that section 1571- of the Revision renders all contracts founded upon a liquor consideration void, and. makes trespasses, in. relation thereto remediless by suit. But.it seems to us to be illogical to hold that because this is so, that the stealing of liquor may not be criminally punished by indictment. It was competent for the legisla-' ture to ordain the former; it has not so ordained the latter.

The provisions of the above section are founded in wisdom. They were intended, as far as possible, to discourage breaches of the law; besides it is fundamental that courts of justice should not give their assistance for the enforce-ment of atiy contract or rights based upon an unlawful act.

Whilst, then, the action of trespass may wisely be withheld, to recover the lost rights of a guilty violator of law,. we ask upon what ground of public policy will it be claimed that the crime of larceny should go unpunished in: any case.

Trespass, at most, is but a wrong done to the rights of an individual. Larceny is. a. crime against society, and. should be punished on account of its own inherent meanness and criminality, as well as on account of the less important rights of property.

■ Whilst, therefore, we hold that the court did not err in rejecting this testimony,.prejudice, nevertheless, may have resulted to. the .defendant in receiving the secondary or hearsay evidence of tbe witness Shade, and. therefore, we will remand the cause and award a new trial.

Reversed.  