State v. Hill

19 S.C. 435, 1883 S.C. LEXIS 94

• Court: Supreme Court of South Carolina
• Decided: June 29, 1883
• Status: Published

Opinion

The opinion of the court was delivered by

Me. Justice McIvee.

The defendant having been convicted under an indictment for horse stealing, moves in arrest of judgment upon the ground of sundry alleged defects in the writs of venire, by which the jurors were summoned, and also for a new trial upon the grounds of certain alleged errors in the charge of the Circuit judge.

The grounds relied upon in arrest of judgment may be divided into two classes: 1. Those which rest upon alleged defects in the writ of venire, issued to summon five additional jurors, drawn from the tales-box to supply a deficiency in the number originally summoned. 2. Those which allege defects in the original writs of venire under which the grand and petit jurors for the term were summoned. Inasmuch as there was not only no necessity, but also no authority, for issuing a writ of venire to summon the five additional jurors drawn from the tales-box, (State v. Williams, 2 Hill 381; State v. Stephens, 11 S. C. 319,) the several objections urged to this writ require no further notice.

The principal objections urged to the original writs of venire are: 1. That they are not signed by the attorney-general or solicitor of the Circuit. 2. That they do not run in the name of the State of South Carolina; the other objections being either abandoned or so plainly untenable that they were not relied upon in the argument here. The first objection rests upon the provisions of section 742 of the General Statutes of 1882, but that section only requires the clerk “to issue every execution, bench warrant or other process issuable or directed to be issued by the courts of sessions, in the name of the attorney-general or solicitor of the Circuit,” and has no application to a writ of venire to summon jurors both for the Courts of Sessions and Common Pleas.

The next objection rests upon the provisions of section 31, article IN. of the constitution, which provides that, “All writs and processes shall run and all prosecutions shall be conducted in the name of the State of South Carolina.” The writs of venire in this case are in the following forms:

“ State oe South Carolina, 1

“County of Spartanburg. J

“ To the Sheriff of Spartanburg County :

“You are hereby strictly required and commanded,” &c.

And it is urged that this is not the proper form, but that it should be as follows:

“ The State -oe South Carolina.

“To the Sheriff of Spartanburg County, Greeting: ‘

“You are hereby strictly required and commanded,” &c.

It appears to us that this is a distinction without a difference. If it anywhere appears in the writ that it is issued in the name of the State, there is a sufficient compliance with the constitutional requirements; and surely the mere location of the words upon the paper can have no special virtue. Nor can the addition in the caption of the words, “County of Spartan-burg,” impair the validity of the mandate, for they may well be regarded as mere. surplusage. Indeed, they may perhaps be treated as serving only to indicate that the officer who issued the writ, whose authority is limited to that county, was properly invested with authority to use the name of the State in that particular locality.

These views are well supported by authority. In State v. Smouse, 49 Iowa 634, the information was for violating one of the ordinances of the city of Washington. It was in the following form: “ The State of Iowa, City of Washington v. Charles Smouse,” and the objection taken was, that it should have been in the name of the city and not of the State. The court held, that the words “State of Iowa,” should be regarded as descriptive merely, or rejected as surplusage, as it clearly appeared from the body of the information, that the prosecution was by and in the name of the city. In Mississippi, where the constitutional provision is like ours, it was held in Greeson v. State, 5 How. (Miss.) 33, that a formal statement in the indictment that it was found by the authority of the State, is not necessary if it appears from the record that the prosecution was in the name of the State. In White v. Commonwealth, 6 Binn. 179, (6 Am. Dec. 443,) the objection to the process for summoning the jury was, that it should have commenced : “ The Commonwealth of Pennsylvania to the Sheriff, Greeting: ” whereas it commenced: “The Judges to the Sheriff, Greeting: In the name and by the authority of the Commonwealth of Pennsylvania, you are hereby commanded, &c.” The constitution then in force in that State, Article V., section 12, declared: “The style of all process, shall be, The Commonwealth of Pennsylvania/ ” &c. The court held the objection untenable, saying: “ It is of no consequence in what part of the process the Commonwealth is introduced, so that the command is given in its name.”

We think that the writs of venire is this case conformed, substantially, to the constitutional requirement, and, therefore, the motion in arrest of judgment cannot be sustained.

The motion for a new trial presents a question which has been before the courts of the several States upon frequent occasions, and the decisions are conflicting. In this State we have no distinct adjudication upon the question, though there is a case hereinafter referred to, which, by analogy, seems to control it. The question is, whether one who steals a horse in another State and brings him into this State, and here converts him to his own use, can be indicted here for larceny. In 1 Bish. Cr. L. (6th edit.), §§ 136-143, the question is discussed, and the conclusion reached that such an indictment can be sustained.

This conclusion is well supported, both by reason and authority. The principle upon which this doctrine rests is, that the possession of stolen property, in contemplation of law, remains in the owner, and the thief, therefore, is guilty of larceny in every place into which he carries the goods, as “ every moment’s continuance of the trespass and felony amounts to a new caption and asportation.”

The case of Watson v. State, 36 Miss. 593, furnishes an able and elaborate discussion of the question. In that case the learned judge who delivered the opinion of the court, Harris, J., shows that both upon principle and authority a person who steals goods in the Slate of Alabama, and carries them into the State of Mississippi, and there converts them to his own use, may be indicted for larceny in the latter State, for the reason that the legal possession still “ remaining with the owner, every moment’s continuance of the trespass and felonly amounts, in legal contemplation, to a new caption and asportation.” He also shows that the cases which hold a contrary doctrine, resting, as they do, ultimately, upon Butler’s Case, cited in 13 Colee Rep. 53, are based upon a misconception of the real ground upon which that case was founded. Again, he says: “ The proof involves the intent and the act. The .existence of the intent may be shown in any locality, county, State or country. The commission of the act must be shown in the county where the indictment was had. There is a wide difference between the proof of the act and the evidence of the intent with which it was done. The intent precedes the act, and may evidence at •different times and in various jurisdictions. It may be shown by the declarations of the actor, or by facts and circumstances happening in a distant country or a different jurisdiction from that where the actual offense occurred.”

Hence, we may well look to the felonious taking in another State for the purpose of ascertaining the intent, and when the act is consummated in this State by bringing the stolen property here and converting it to the use of the thief, the offense is complete here. In State v. Ellis, 3 Conn. 185, it was held that the stealing of a horse in another State and carrying him into the State of Connecticut constituted the crime of larceny there. In Massachusetts there are several cases holding a similar doctrine. Commonwealth v. Cullins, 1 Mass. 116, followed by Commonwealth v. Andrews, 2 Mass. 14, in which the decision is said to rest upon the principle “ that the original taking being felonious, every act of possession continued under it by the thief is a felonious taking, and wherever he carries the articles stolen he may there be' indicted, convicted and punished for the felony.” These cases were recognized and followed in Commonwealth v. Holder, 9 Gray 7, and Commonwealth v. White, 123 Mass. 433, decided as late as 1877.

It is true that in the case of Commonwealth v. Uprichard, 3 Gray 434, it was held that one who steals goods in one of the British Provinces (Nova Scotia) and carries them into the State of Massachusetts, cannot be indicted there for larceny. Shaw, C. J., delivering the opinion of the court, while recognizing the authority of the two cases above cited from 1 and 2 Mass., distinguishes the case of a larceny committed in a foreign country from one committed in another State. While plainly intimating the opinion that if the question were an open one it might be decided differently, he undertakes to put those decisions upon the ground of the peculiar relations existing between the States of the Union, which, as he says, are somewhat analogous to the relations existing between the several counties of a State — a ground which we do not find taken anywhere else, and one which we are by no means disposed to adopt, and wholly ignores the true ground upon which these decisions, as well as others of the like character, do rest, yiz.: that where one takes goods from another in any place, under circumstances which make the taking felonious, the possession of the owner, in contemplation of law, continues, and where the goods so taken are carried into another State, that constitutes a new taking and asportation in that State, for which an indictment for larceny will lie.

In Worthington v. State, 58 Md. 403, a very recent case, it was held that where a person steals goods in one State and carries them into another, the act of carrying the stolen property into the latter State is a new larceny for which the thief may there be indicted. This case furnishes a full collection of the authorities.

In this State, as we have said, the point under discussion has never been distinctly decided. In the State v. Bryant, 9 Rich. 113, our court held, that where a horse is stolen in one district (county) and is carried by the thief into another, and there sold, an indictment under the statute for horse stealing might be maintained in the latter district; but they declined to express any opinion upon the question now presented for our decision, as it was not then before them. It seems to us, however, that the reason given for the decision applies with equal force to the case now under consideration, and is practically the same reason as that given for the decisions in the other States, which we have hereinbefore cited. Judge Whitner, in delivering the opinion of the court, uses this language: “ The property in the goods is not changed, and the law considers them in the possession of the proprietor until he is legally divested. The continuance of the trespass is as much a wrong as the original taking, and therefore the continued possession of the wrong-doer is a continued taking and at each moment manifests the same disposition (animun furandi) that prompted the original act.” This case, then, may well be regarded as authority for the view which we have taken, as it really rests upon the same principle.

The ground taken in most of the cases which hold a contrary doctrine, that the view which we have adopted may render a person liable to be indicted twice for the same offense, we do not think entitled to any weight. In the first place, it may well be doubted whether it is the same offense; and even if it were, we know of no law which exempts a person from liability to answer for a violation of the criminal law of this State simply because he may be liable to indictment elsewhere for the same offense. What effect an indictment and conviction for the larceny committed in the State, where the property was originally stolen, might have, we are not now called upon to consider. Indeed, we are at a loss to see with what reason a felon who has rendered himself amenable to the laws of this State, can claim exemption simply because he has violated the law of another State. As is said in 1 Bish. Cr. L., § 142: “ The common law either admits of two convictions in such a case, or it does not. If it does, there is nothing in the objection; if it does not, then the first conviction, in whichever locality it takes place, may be pleaded in bar of the second. The common law, however, knows no such plea in defense of a prosecution as liability to indictment elsewhere.”

We see no error, therefore, either in the refusal to charge as requested or in that part of the charge which is excepted to. The judgment of this court is, that the judgment of the Circuit Court be affirmed.