delivered the opinion of the Court:
The indictment presented by the grand jury in the circuit court of Jackson county, at the December term, 1882, against Thomas Campbell, contains two counts. The first one charges defendant with receiving stolen goods, knowing the same to have been stolen, and the second charges him with unlawfully and feloniously aiding in concealing stolen property, knowing the same to have been stolen. On being arraigned at the March term of the court, 1883, defendant entered a motion to quash the indictment, which motion being overruled by the court, he entered a plea of not guilty, on which a trial was had, but the jury failing to agree, they were discharged, and the cause continued. At the August term of court, 1883, defendant seems to have filed a special plea, in which it is averred, in substance, he was indicted in the county of Perry, at the October term, 1882, of the circuit court of that county, with one Robert C. Milburn, for the identical same offence, and that on the trial in the circuit court of that county he was acquitted. To the plea setting forth, with the usual formality, the proceedings had against defendant in the circuit court of Perry county, and his acquittal of the offence charged against him in the indictment, by the verdict of a jury, and the judgment of the court thereon, the State’s attorney prosecuting filed a demurrer, which was by the court sustained. On the trial at that term of the court, on the plea of not guilty, filed at a former term, defendant was found guilty by the jury, and the term of punishment fixed at a period of three years in the penitentiary. Motions for a new trial and in arrest of judgment were severally overruled, and the court pronounced judgment on the verdict.
The points made upon which defendant most confidently relies for a reversal of the judgment against him are, the court erred, first, in sustaining the demurrer to the plea of autre fois acquit; second, in refusing certain instructions asked by defendant; and third, in permitting the State’s attorney, in his closing argument to the jury on behalf of the People, to make remarks concerning defendant not warranted by the evidence, and which were calculated to prejudice his defence.
The principal question in the case arises on the decision of the court sustaining the demurrer to the plea of autre fois acquit. The plea contains a copy of the indictment found against defendant in the county of Perry, and it is seen it is an exact copy of the one found against defendant by the grand jury of the county of Jackson, and under which he was convicted, except the venue is laid in the county of Perry. The indictments in both counties contain two counts,—one for receiving stolen property, knowing it to have been stolen, and one for aiding in concealing stolen property,—and were found under section 239 of the Criminal Code. (Rev. Stat. 1874.) It is hardly necessary to state a principle so elementary, that if the circuit court of Perry county had no jurisdiction to try defendant for the crime with which he is charged in Jackson county, its judgment would be no bar to the present prosecution. Under the constitution and laws of this State, as at common law, the local jurisdiction of all offences is in the county where the offence is committed. (See art. 2, sec. 9, Const. 1870, and sec. 395 of the Crim. Code, Rev. Stat. 1874.) The statute, it will be seen, follows closely the constitution, and declares, “the local jurisdiction of all offences not otherwise provided by law shall be in the county where the offence was committed.” Among the provisions for jurisdiction of the same offence in more than one county, is where, as in section 399 of the Criminal Code, which provides, concerning jurisdiction in larceny, that “where property is stolen in another State or country, and brought into this State, or is stolen in one county of this State and carried into another, the jurisdiction shall be in any county into or through which the property may have passed, or where the same may be found.” This latter statute is simply declaratory of the common law on the same subject. Larceny, under the laws of this State, “is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another.” The common law,—which. contained the same definitidn of larceny,—seems to have regarded the felony as having been committed where the goods were feloniously stolen, but for the purposes of jurisdiction the offence was treated as having been committed within any jurisdiction into which the property was afterwards carried. The rule on this subject proceeds on the legal assumption that where the property has been feloniously taken, every act of removal may be regarded as a new taking and asportation. (
The plea of autre fois acquit is grounded on that principle of the common law, and which has been incorporated in the constitution of this State, no person shall “be twice put in jeopardy for the same offence.” A former acquittal may always be pleaded to a second indictment for the same offence, which implies that the court that pronounced the judgment of acquittal had jurisdiction of the cause. The principle is of course familiar, but there is often some difficulty met with in its application. Generally the rule is, as at common law, an acquittal in one county can only be pleaded in the. same county, and the reason assigned is, be-" cause all indictments are local, and therefore if the first were laid in a wrong county the defendant could not be found guilty upon it, and consequently was in no danger, and therefore could not plead' an acquittal upon it in bar of a subsequent indictment for the offence in the proper county. (Vaux’s case, Pt. 4, Co. 45 d, Com. Dig. Indict. L.; 1 Wharton on Crim. Law, p. 555, ed. of 1874; Marshall v. The State,
It is said by text writers, the Crown may either traverse or demur to the plea of autre fois acquit. The same practice would no doubt prevail under our system of jurisprudence. In this case the question as to the sufficiency of the plea to bar the prosecution arises on a demurrer to it, interposed by the People. The rule laid down by Blackstone as to pleas of this character has been adopted by this court in Freeland v. The People,
It is the settled law that an acquittal on one indictment, in order to be a good defence to a subsequent indictment, must be an acquittal of the same identical offence as that charged in the second indictment. That fact must in some way appear from the plea itself, and that the offences charged in both cases were the same in law and in fact. (Commonwealth v. Roby,
A question might arise as to whether the plea might not be good as to the second count of the indictment, which charges defendant with aiding to conceal stolen goods. It might be he aided in concealing the property in Perry county, and that fact would have conferred jurisdiction. How the law may be on that question it will not now be necessary to decide, for it does not appear from the plea the property was ever in Perry county. That fact is jurisdictional, and must appear, or the plea will be bad. It will be observed the former acquittal pleaded took place in another county, and not within the jurisdiction of the court where the second indictment was found, and it is necessary the plea should show the court had jurisdiction to try defendant for the identical offence charged in the second indictment. It is apprehended it must appear, from the plea itself, how the court obtained jurisdiction, otherwise the plea will be no bar.' Lord Hale states the rule to be, that a plea of former acquittal is no bar to an indictment for larceny in the county of G, for though the accused be acquitted in D, it may be because the goods were never' brought into that county, and so the felony in C was not in question.
But another view renders any further consideration of this branch of the case unnecessary. The plea of autre fois acquit, it will be observed, is to the whole indictment. Failing to answer any one count of the indictment, the plea would be bad on demurrer. (Commonwealth v. Wade,
Passing now to the consideration of the instructions given by the trial court, it does not appear from the transcript of the record in this case that more than one instruction was given on behalf of the People. That has relation to the form of the verdict, and it is so clearly accurate no question is made concerning it. On behalf of defendant a great number of instructions were given, stating the law very favorably for the defence sought to be made. Of the instructions refused that were asked for by defendant, it is insisted it was error in the court not to give the first, second and third of the series as they appear in the transcript of the record. The first instruction is faulty, because it directs the attention of the jury to a particular piece of evidence, and gives an undue importance to it, and for the further reason it gives a construction to the letter to which attention was called, not warranted by any correct reading of the same. The proposition contained in the second charge, if defendant concealed the stolen property “with an intention to save himself from loss,” is not the law, and that vicious clause rendered the whole instruction bad. If it be conceded the third charge contains a correct principle of law, it could not have the slightest application to the facts of the case, and the court very properly refused it.
In support of his motion for a new trial, defendant filed his own affidavit of matters stated and accusations made by the State’s attorney in his closing argument to the jury, against defendant, not warranted by any evidence in the case. If the State’s attorney said all that is imputed to him, his conduct in that respect is not free from blame. It is no sort of justification for him that counsel for defendant may have traveled out of the record and made statements not warranted by the evidence. But it does not appear from anything in this record that defendant called the attention of the court to the objectionable language at the time. Had he done so, no doubt the court would have checked counsel at once, and admonished him not to repeat the objectionable language. A party on trial will not be permitted to remain quiet, without calling the attention of the court to it, and permit counsel to indulge in improper language, and afterwards assign the same for error. He must object at the outset, or his objection will be deemed to have been waived. Counsel say, in the case at bar, that at the time the objectionable language was being used, the attention of the trial judge was called to the fact, and the judge not only failed to check counsel, but gave him license to proceed. No such objection is found in the abstract. The transcript of the record has also been examined, and no such thing is discovered, if any exists. Failing to call the attention of the court to the improper language at the time it was used, it is now too late to insist upon it as error. The fact it was embodied in an affidavit in support of a motion for a new trial, does not dispense with the necessity for calling the attention of the court at the time that counsel might be confined to the record in the argument of the case. Omitting to do so, the objection can not now prevail. Wilson v. The People,
Without entering upon any analysis of the evidence, it may be said, when it is subjected to a careful consideration it is seen it fully justifies the verdict. Ordinarily, the question of the guilt or innocence of the accused on trial for crime is a fact peculiarly within the province of the jury to find, It is the duty of the court, however, to see that no injustice is. done the accused, and for that reason the court must consider the evidence in all criminal cases that come before it. That has been done in this case, and no reason is perceived for disturbing the verdict.
It has been observed the indictment contains two counts,— one for receiving stolen property, and the other for aiding in concealing stolen property,—and it is insisted a general verdict of guilty is bad. Both counts in this indictment relate to the same transaction, and the punishment, even if the offences are distinct, is precisely the same. That being so, under the decision of this court in Lyon v. The People,
No serious error is discovered in the admission of testimony against defendant, that would justify any complaint on that score. The suggestion the letter read in evidence was written under such circumstances as made it a “privileged communication, ” has so little in its support it need not be remarked upon. On the whole record, when considered, no error materially affecting the merits of the case is perceived, and the judgment of the circuit court must be affirmed.
Judgment affirmed.