Smith v. State

| Ala. | Dec 15, 1876

BRICKELL, C. J. —

The common law was inflexible, not only that a man should be tried, on a criminal accusation, by bis peers, but that bis triers should be of tbe vicinage — near tbe place where tbe offense was alleged to have been committed. Tbe rule, if not gradually relaxed, was at least construed to be satisfied, if tbe trial was by a jury of good and lawful men of tbe county in which" tbe offense was committed, or alleged to have been committed. An exception was early recognized, if tbe offense was in its nature continuous. A simple larceny furnished tbe most frequent example. Tbe possession of tbe goods stolen by tbe thief was a larceny in every county into which be might carry them. • Tbe trespass, committed in tbe original taking, did not, in contemplation of law, divest tbe true owner of tbe possession; and every moment’s continuance of tbe trespass and felony is, in legal consideration, a new caption and asportation. — 1 Lead. Cr. Cases, 224.

Tbe exception was, however, limited to simple larceny. If tbe original offense was compound, involving more than a simple caption and asportation, while tbe simple larceny was tbe subject of indictment in any county into which tbe thief carries tbe goods, tbe compound offense is indictable only in tbe county in which it was committed. 1 Lead. Cr. Cases, 225; 3 Greenl. Ev. § 152; 1 Bish. Cr. Pro. § 60. If, in tbe course of a robbery, larceny is committed, tbe offender could be convicted of tbe latter, not of tbe former offense, in any county into which be might carry tbe goods. So, if tbe offense is aggravated, because of tbe place of its commission, as in a store, or other hoúse, tbe security of which is intended to be protected; of tbe aggravated offense, tbe offender is indictable in tbe county in which it was committed, and not in another county to which tbe goods may be carried. Tbe offense committed in tbe latter county is tbe unlawful caption and asportation, not accompanied with an invasion of the security of a bouse witñin tbe protection of tbe law creating tbe compound offense.

Tbe statute (E. C. § 3948) declaring, “ where property is stolen in one county, and carried into another, the jurisdiction is in either county,” is but an affirmation, not an enlargement of tbe common-law rule to which we have referred, and does not extend to compound offenses, like that imputed to tbe appellant. While be was indictable in Wilcox county for a felony, if be was guilty of there stealing goods from a ware-house, exceeding in value fifty dollars, he was only guilty of petit larceny, a misdemeanor, if tbe value of tbe goods was less than one hundred dollars, in Dallas county, to which be carried them. Tbe felony was not ambulatory, but, by force of the statute creating it, locality is of its essence.

Tbe rulings of the Circuit Court were adverse to these views, and the judgment must be reversed, and the cause remanded. The prisoner will remain in custody, until discharged by due course oí law.