ment rescinded by the act and default of the person with whom he contracted. It was for a single item, easily sus ceptible of proof at common law, and needing none of the extraordinary aid of chancery; there was then no error in refusing the non-suit on this ground.

Judgment affirmed.

JULY 1830.

Maddera

v.

Smith.

THE STATE V. SEAY.

1. A person who steals property in a sister State, and brings it here, is liable to be indicted under the laws of our State.

2. And the statute providing for the punishment of such offence here, is not unconstitutional.

3. The indictment under that statute must charge that the possession of the property in this State was felonious.

4. In an indictment, nothing can be taken by an intendment.

AQUILLA SEAY was indicted in the Circuit Court of Mobile county, at March term 1830, for larceny, and for bringing property to that county stolen by him in Georgia. The indictment contained five counts. The second count charged that "Aquilla Seay, late of the State of Alabama and county of Mobile, laborer, on the 20th day of March, 1830, with force and arms, in the State of Georgia, to wit: at the city of Augusta, in the county of Richmond in said State, and out of the State of Alabama, one carriage commonly called a barouche, of the value of one hundred dollars, and harness for two horses of the value of fifty dollars, being altogether of the value of one hundred and fifty dollars, of the goods and chattels of one Thomas G. Hall, then and there found and being, then and there feloniously did steal, take, and carry away; and afterwards, to wit: on the 13th day of April, 1830, at the county of Mobile in the State of Alabama, the said Aquilla Seay, the said carriage called a barouche of the value of one hundred dollars, and the said harness for two horses of the value of fifty dollars, of the goods and chattels of the said Thomas G. Hall as aforesaid, and feloniously stolen, taken and carried away as aforesaid by him the said Aquilla Seay, in the State of Georgia and out of the State of Alabama as aforesaid, did have in the possession of him

JULY 1830.

the stud Aquilla Seay, to wit: on the day and year last aforesaid, to wit: in the county of Mobile and State of

The State Alabama aforesaid, contrary to the form of the statute in

v.

Seav.

a Laws of Ala. 221.

such cases made and provided." On this count the jury found the prisoner guilty, but not guilty as to the other counts. A motion was made by the prisoners counsel to arrest the judgment, on the ground that he was not legally punishable for the offence charged in the second count, by the laws of this State. The Judge presiding on the circuit conceiving the questions of law arising on the motion to be novel and difficult, referred them to this Court for decision.

BAGBT, for the prisoner. We insist that the judgment should be arrested, because the prisoner is not found guilty of any offence which we can legally punish. The statute under which this count is framed, is in contravention with the constitutional rights of the prisoner, and is therefore void. The Circuit Court of Mobile county can have no jurisdiction of this supposed offence. The indictment charges that an offence was committed in Georgia, within the jurisdiction of that State, and it is attempted to parcel out the offence and punish it bere also, which this State has no right to do. It is an attempt to

infringe upon the jurisdiction and rights of the State of & See 2 Sec. Georgia. If the taking in Georgia contitutes a substan4 and 5 Art. Live offence there; then it is not cognizable here, and we of the Con-are bound to presume it is an offence there, as the common the United law must be supposed to govern. No indictment can be

stitution of

States.

c 2 Hawkins 325.

good unless it be laid to have been committed at some place, and within the jurisdiction of the Court; a party has a constitutional right to process to compel the attendance of witnesses for his defence; how can he have process here to compel the attendance of witnesses from Georgia? How then can he defend himself when the taking is alleged to have been there, where the witnesses must be supposed to reside? Must he lose that right, and the benefit of the only witnesses which can be serviceable to him to shew

his innocence?d Again, our constitution provides that no to the Con- person shall be twice punished for the same offence. This stitution of indictment, and a conviction under it, would afford no proStates Art. tection against a second conviction in Georgia for the same offence, and unless it can have that effect, it is unconstitutional? Ifti is not, by the effect of different statutes, a party might be here whipped and branded, in Georgia confined

The State v.

Seay.

13 Rep. 53.

in the penitentiary, and be finally hung in North Carolina JULY 1800. for substantially one and the same offence. The statute does not make the act charged to have been committed a distinct offence, but treats it as a larceny, and punishes it as such; then there is no pretence even in the statute that it is a separate and different criminal act. In Butlers case, a a 3 Inst. 113. where goods were stolen on the high seas, it was holden that the offender could not be punished in any county in England, although the goods were brought to England. In the case of the State v. Brown, the Court in North Carolina decided that one who had stolen property out of the 1 Haywood State, and brought it into that State, could not be punished Reports 100. there. In New York, the same decision was made. cc 2 Johnsons Those authorities are certainly sound in principle.

STEWART, for the State. The act provides that where property is stolen out of the State, and it is brought within it, and where the offender shall have and keep it in his possession in this State, he shall be punished. The question is whether the State has the right to pass such a law. It must be admitted that the State is sovereign, and that it has to the fullest extent the power to declare what shall be a public offence, and subject to punishment, and that it is the duty of the Legislature to protect its citizens from all injury, and the effect of bad example. This right is ample and uncontrollable, and cannot be abridged or restricted by the enactments or laws of any other State. The framers of the statute conceived it to be an evil, to permit persons to have and to keep in their possession in this State, with impunity, property stolen elsewhere; the effect of permitting it would be demoralizing; it would prove an inducement for thieves to accumulate here, and give them the means and facility to cheat our citizens, by keeping the property till they could sell it, and defraud our people. The statute does not undertake to punish for the larceny, it is for having stolen goods in possession; the act of stealing, and the act of keeping, can be well distinguished; it is not attempting any thing against the rights or sovereignty of Georgia. When the prisoner placed himself under the jurisdiction of Alabama, he became bound to submit to its criminal laws, and to avoid doing that which was prohibited, at his peril. It was perfectly possible for him to steal property in Georgia, and when he came to the Alabama line, to leave it; he then would not be liable under our statute. This proves the two offences to be distinct, for

Rep. 477, 479

JULY 1830.

The State
Seay.

v.

he may commit the one and avoid committing the other.. The doctrine of the common law is, that the continuance of the asportation in each county is a new larceny, and that an indictment lies in any county where the goods are carried. The reason of the decision in Butler's case cited

was, that it was the Courts of Admiralty which had jurisC. 33. diction of the offence, and not the Courts of common law. In the case of the Commonwealth v. Cullins it was decided, that the carrying of goods stolen in one State into 8. 1 Mass. R. another, was the same as the asportation of goods from one county to another, and that the taker could be legally convicted of the larceny in the State where the goods were carried. The point was again elaborately discussed in the case of the Commonwealth v. Andrews, and upon 2. Mass. R. much deliberation, the authority of the previous case was confirmed. In Connecticut, the same doctrine has been d3 Conn. R. held.d The cases cited from 2nd Johnson's Reports and 1st Haywood, by the counsel for the prisoner, it is true are in conflict with these decisions: but all those cases were on indictments for larceny simply, not made under such a statute as ours; and even should the Court be of opinion that the latter are the best authorities, they do not in any way demonstrate that the State has not the power to declare the keeping in possession stolen goods, to be of itself a distinct offence. Such statutes are common in England, for instance, those punishing persons having in their possession counterfeit money, and implements and tools for counterfeiting. Indeed it is of absolute necessity that such statutes shall be passed. Suppose a person steal a free negro in one State, and after keeping him a slave there for some time, he should bring him to this State, and continue to keep him and treat him as a slave, would not such an offence require punishment here? By our statute e it is provided, that if a free person be stolen and sold as a slave, the offender shall suffer death; would the offender under this statute escape punishment if the negro so sold was stolen in another State? the same objection would certainly exist as to the impossibility of procuring witnesses for the prisoners defence from the sister State, and indeed it may exist in any case where the witness is absent. The objection that a person shall not be twice punished for the same offence does not apply here. It is not shewn that there ever has been any conviction in Georgia for this offence, so this would not be a second punishment; but the offences are distinct and different, and although our statute

affixes the same punishment as for a larceny, that does not necessarily make the offences the same.

BAGBY, in conclusion. The argument of the counsel for the State is founded on the very reverse of the golden rule, which prefers that ninety nine guilty persons shall escape punishment, than that one innocent one shall suffer. The common law doctrine that every new asportation is a new taking, by which an indictment can be tried in any county in England where the defendant is found in possession of the property, is wholly inapplicable here. There the criminal law in each county is the same; the jurisdiction of the Court extends all over England, so as to issue process and subpœnas to any county. But here it is entirely different; each State has its own laws, but the benign principles of the Constitution of the United States for the preservation of personal rights, control every State. It is said it is a distinct offence, but it is in fact only parcelling out one offence. Could the prosecution be sustained without proving a larceny in Georgia! certainly not. Would a conviction here bar a prosecution in Georgia? certainly not. Is it not one taking, and one conversion to the defendants own use? It certainly is. The statute itself considers it and punishes it as larceny. A great difficulty, and it is a constitutional one, is entirely unanswered, and it seems to me the objection is conclusive, that the prisoner cannot have process to compel the attendance of witnesses to attest his innocence. It is evident that the witnesses who reside where the taking is alleged to have taken place, are indispensable to a just and fair trial. It is for this reason that all judicial investigations of a criminal nature are required by our laws to be had where the offence is supposed to have been committed. It is a benign and just provision, which would be here violated.

By JUDGE COLLIER. The offence charged, and the form of the indictment, very materially suggest these questions for our examination.

1st. Can one who has committed a larceny in a sister State, and brought with him the property stolen into this, be punished under our laws?

2nd. If the facts supposed in the first question constitute an offence, is the indictment sufficient in point of law?

First. That an individual who has committed a lar

JULY 1830.

The State

v.

Seay.