State v. Brown

8 Nev. 208 | Nev. | 1873

By the Court,

Hawley, J.:

Appellant was jointly indicted with one James Parker by the grand jury of White Pine County for the crime of grand larceny. The indictment alleges “ That the said Andrew S. Brown, * * on or about the third day of October, * * (1872,) at the County of Elko, State of Nevada, eleven head of cattle, * * * the personal property of Norman Wines, * * then and there being found, feloniously did steal, take and drive away. And the said defendants, Andrew S. Brown, * * being so in possession of the said eleven head of cattle, as aforesaid, did, on or about the seventh day of October, * * (1872), bring each and every of said eleven head of cattle * * • * into the said County of White Pine, State of Nevada, * *

Appellant was found guilty as charged in the indictment. There are only two errors assigned in the bill of exceptions: first, that the court erred in refusing defendant’s motion for a continuance; second, tbat the court erred in refusing to dismiss tbe cause for want of jurisdiction. 'Erom tbe views we entertain of tbis case it is unnecessary to examine or pass upon tbe ruling of tbe court refusing a continuance.

Tbe position contended for by counsel in support of tbe second assignment of error, tbat tbe court bad no jurisdiction of tbe offense because tbe cattle were driven through White Pine County into Nye, is without merit or pretense of authority. Tbe law is too well settled to require any argument or citation of authorities tbat defendant under tbe testimony could have been properly indicted and tried in either of tbe Counties of Elko, White Pine, or Nye.

Upon tbe argument in tbis court, counsel for appellant claims tbat tbe indictment is fatally defective in tbis, tbat it does not allege tbe commission of any offense within White Pine County. Tbe Criminal Practice Act provides tbat “when property feloniously taken in one county by * '* * larceny has been brought into another county, tbe jurisdiction of tbe offense shall be in either county.” Stats. 1861, 444, Sec. 90. At common law a defendant charged with larceny could be indicted and tried in any county into which be took tbe property. Tbis was upon tbe principle laid down in all tbe text-books, “tbat the possession of goods stolen by tbe thief is a larceny in every county into which be carries tbe goods, because tbe legal possession still remaining in tbe true ownér, every moment’s continuance of the trespass and felony amounts in legal consideration to a new caption and asportation.” 1 Chitty’s Cr. L. 179; 2 Russ. Cr. 116, 117, 118; 1 Bishop’s Cr. Procedure, Secs. 75, 76; 3 Greenl. Ev. Sec. 152. Tbe statute has not changed tbis rule. Tbis question has been repeatedly decided under statutory provisions, as well as by tbe rule of tbe common law; and tbe courts have uniformly held tbat a person stealing goods in one county and carrying them into other counties is considered as guilty of tbe crime and may be indicted and convicted in either county; because every act of tbe thief in tbe removal of tbe property and keeping it from the possession of the owner is, in contemplation of law, an offense. Haskins v People, 16 N. Y. 318; The People v. Smith, 4 Parker, Cr. R. 255; State v. Douglas, 17 Me. 195; Commonwealth v. Cousins, 2 Leigh, 708; State v. Somerville, 21 Me. 19; State v. Underwood, 49 Me. 185; Morrissey v. People, 11 Mich. 329; State v. Seay, 3 Stewart (Ala.) 130; Aaroon et al. v. State, 39 Ala. 689; People v. Mellen, 10 Cal, 651. This principle being so well established, it follows that • the offense should have been alleged in the indictment to have been committed in the county where the indictment was found.

In Haskins v. People, the goods were stolen in Cayuga County and brought into Onondaga County. The indictment alleged the offense to be in Onondaga County and the defendant objected to the indictment for that reason. Denio, C. J., held the indictment to be sufficient, and in deciding the question said: “It was unnecessary, and I think it would have been erroneous, to have set out in the indictment the offense in Cayuga County. The courts in Onondaga County had no jurisdiction of that transaction, as a distinct offense. It’was simply matter of evidence, to characterize what was done in Onondaga, and to show the quality of that act. * * 'x' * In the case of an indictment for a simple larceny, found in a county into which the thief has carried the property stolen in another county, the law adjudges that the offense was in truth committed there, and hence there is no occasion for a statement in the pleading of what occurred in the other county. ”

In Morrissey v. People it was held that the indictment “must state the crime for which the prisoner is tried, but it need not and should not state the evidence by which it is to be proved. ” In People v. Mellen, cattle were stolen by defendant in the County of Sacramento, and were afterwards driven to the County of Yuba, where they were found in the possession of defendant. The indictment alleged the offense to have been committed in Yuba County. Rhodes, C. J., in delivering the opinion of the court said: “ The statute does not prescribe the form of the indictment * * but the offense is considered as committed in each county into which the thief carries the property * *. It is accordingly held, that it is proper to charge the thief with the commission of the offense in the county into which he took the property. Some of the cases hold that it is not improper to charge him, also, in the same indictment, with the commission of the larceny in the county where the property was first stolen; hut none of the cases brought to our notice hold that it is necessary.”

In the case at bar the indictment should have been drawn locating the venue in White Pine County. Eor aught that appears in the indictment, the asportation in Elko County may have been such as to render the defendant liable to a conviction for larceny there and still the possession in White Pine be lawful, or the owner of the stolen property before it was brought within the limits of White Pine County may have made a transfer of his right to the prisoner or consented that he should take it into White Pine. If proper to have set forth the offense in Elko County the indictment would still be fatally defective in not stating that the act of defendant in bringing the cattle into White Pine County was felonious.

The indictment fails to charge that any offense was committed within the county where it was found. The'judgment must be reversed; and as the indictment is radically defective, the court below will submit this case to another grand jury. •

It is so ordered.