State v. Bartlett

11 Vt. 650 | Vt. | 1839

The opinion of the court was delivered by

Redfield, J.,

The motion in arrest of judgment, founded upon the insufficiency of the minute, made by the clerk, upon the indictment, at the time it was-found by the grand jury, does not seem to be well founded. The minute was in this form ; “ Received and filed this 29th 1838,” properly signed by the clerk. In determining upon the sufficiency of the pleadings, on motion in arrest, which always proceeds upon some alleged defect in the record, the court will always look into the whole record. The object of the statute, in requiring this minute ,to be made by the clerk, of the “ true day, month and year,” when the indictment is found, is obviously to put it in the power of the court to determine, with certainty, whether the offence is barred by the statute of limitations. If the minute is sufficient to answer all the purposes, for which it is required, any verbal departure from the precise requisitions of the statute ought not to be held fatal to the proceedings. In the present case, although the word “ month” is not found in the minute of the clerk, nor yet, the word “ day,” as expressly required by the statute; still, if the minute, by reference to the records of the term, will admit of no possible misapprehension, it is sufficient. The day named is the “ 29th.” This must be either the “ 29th” day of the term, or of some month during the term, as the minute is thus prefaced, “Orleans county court, Dec. T. 1838 ;” then follows the minute already recited. By reference to the record, it appears there were not so many days in that term, it could not then be the “ 29th” day of the term. The term was begun and ended in the month of December, and was holden until after the “29th”' “day” of that “month.” The minute, thus interpreted, could only signify the “ 29th” day of the month of December, “ 1838.” To arrest the judgment for this defect, would be a degree of nice criticism, which we could not justify to ourselves.

-The only remaining ground urged by the respondent’s counsel is, that an indictment for larceny cannot be sustained here, where the original caption was in the Province of Canada. If' this question were entirely new, and to be now decided upon the weight of authority, at common law, I confess I should incline to the view taken by the respondent’s counsel. For it is expressly laid down by all the English law writers upon this subject, that “ if the original taking be such whereof the common law cannot take cognizance, or if the goods be taken at sea, the thief cannot be indicted of the larceny in any county into which he shall carry them.” 2 Russell, on Crimes 175. The case of the Pirates, 3 Inst. 113. 1 Hawk. P. C. ch. 33, §32. The same exceptions obtained in regard to goods taken in any other part of the United Kingdom, and brought into any county in England. Rex v Anderson, 2 East’s P. C. ch. 16, §156, p. 772. These obstacles were removed by the statute of 45 and 54 Geo. 3 and 7 and 8 Geo. 4.

But in this state, the rule has been too long settled, and recognized by too long and uniform a course of practice and decision, to be now changed, unless it be by act of the legislature. We think, too, that the reasons are quite sufficient why the law, upon principles of mere policy, should not be changed.

Larceny consists in the felonious taking and carrying away of the goods of another. It implies a forcible violation of the right of the owner in regard to possession, as well as property; and that this should be done secretly or feloniously. Now precisely the same reason, found in all the books, why the offender is guilty of larceny, in every county, into which he conveys the goods ; viz ; — “ that every moment’s continuance of the trespass and felony amounts to a new caption and asportation,” will apply to the present case with the same force of its original use. Hence it has been decided, that where goods are taken in one of the United States and brought into another, the offender may be indicted in the latter state, and there tried. State v. Mockridge, decided by this court, some years since, in the county of Chittenden, and not reported. The same rule obtains in some of the other states. Commonwealth v. Cullins, 1 Mass. R. 116. Commonwealth v. Andrews, 2 do. 14. State v. Ellis, 3 Conn. R. 185. New York, and North Carolina have decided otherwise.

It is believed no good reason can be urged, why the rule should apply, as between the American states, and not extend to all countries. These states, so far as punishment for crimes is concerned, are as foreign to each other as distinct nations. There could be no pretence, that in the case of Mockridge, the stealing of money, in the state of New York, was any more punishable here, than if he had taken it in Canada, or even in a country where there is no law on the subject. It could only be upon the ground, that the bringing the money into this state “ amounted to a new caption and asportation,” like the carrying of goods, feloniously, through more than one county, which is indictable in either county. Such has been the long established practice in this state. A case is mentioned by one of my brethren, as having occurred, while the late judge Tichenor was Chief Justice of this court, where the original taking was in Canada, and the offender was convicted here. Other cases of a similar character are known to have occurred, in the state, at different periods. We are not disposed to relax the rule. The argument, that it might operate severely upon offenders, who took property in a remote section of the Union, and, after having carried it through many intervening states, should finally be arrested, having passed, perhaps, a jurisdiction, where larceny was a capital offence, is one of those arguments ab inconvenienti, which are always specious, but not always safe to be relied upon. It is sufficient to say, that no country, not absolutely barbarous, would ever presume to punish any one, a second time, for the same offence. Again, it would never be in the power of a second jurisdiction, to punish the same offence, unless the first jurisdiction, after having inflicted the utmost punishment, should surrender the expiated offender, to be still further punished, which is not a supposable case, in any Christian country.

The judgment of the court is, that the respondent take nothing by his exceptions and motion.

No further objections being urged he was sentenced to confinement in the state prison.