State v. Grady, 34 Conn. 118

State v. Grady

34 Conn. 118 | Conn. | 1867

Butler, J.

We discover no error in this record, either in the assignment of errors or the motion for ajsij^trial.

The first point made is that so much of ^^^^nte existing at the time of the perpetration of this crira^MBPeclared- the penalty of the offense, had been repealed whSHiese prisoners were tried, and therefore that there was no statute under which they could be punished.

It is unquestionably true that if an offense is committed against a statute, and afterwards and before sentence the statute is repealed, any proceedings under it which were not passed and closed are arrested, as if the statute had never existed. This was settled upon full consideration in the case of The State v. Daley, 29 Conn., 275. If then the statute against which the offense in question was committed was repealed by the act of 1866, as claimed, it would be our duty to advise an arrest of the judgment.

But we do not understand the fact to be so. The statute which existed at the time when the offense was committed, provided for the punishment by imprisonment in a common jail in all cases of larceny where the value of the property did not exceed the sum of $50, and punishment by imprisonment in the Connecticut state prison for a term not exceeding five years in all cases where the value of the property stolen should exceed the sum of $50. The essential elements of that statute then were a graduation of the punishment by imprisonment in all cases of theft (not from the person,) according to the value of the property stolen. The act of 1866 repeals so much of that statute as is inconsistent with it, and leaves so much as is not inconsistent in full force. What inconsistency then is there between the two statutes ? They are different, undoubtedly; but it is not a question of diffei'ence, it is one of inconsistency.

If then we compare the two statutes, we find they both relate to every description of theft except that from the person, and in their- description of the offense are identical. We find too that they-both graduate the punishment by imprisonment according to the value of the property stolen; and the latter statute introduces a new degrée of punishment where the property *129stolen exceeds the sum of $2,000. The whole purpose, object and effect is to provide an additional degree of punishment where the value of the property exceeds $2,000. There is no inconsistency then in any other respect than in the degree of punishment where the property stolen exceeds $2,000. In the old statute the punishment, where the property stolen did not exceed the sum of $50, was punishment by imprisonment in a common jail; and the new statute leaves that part undisturbed. The old statute provided the punishment by imprisonment in the Connecticut state prison in all cases where the value of the property stolen exceeded the sum of $50. The new statute adds the punishment by a new term in the Connecticut state prison not exceeding twenty years, where the property stolen exceeds the value of $2,000. The punishment inflicted by the two statutes where the property stolen is less than the sum of $2,000 is precisely the same in nature and degree and there can be no pretense of inconsistency between them. In that respect then, that is to say in respect to the punishment to be inflicted in case the value of the property should exceed $2,000, the two statutes are inconsistent, and in no other respect. And so far forth as the old statute limited the punishment to a term not exceeding five years where the property exceeded the value of $2,000, it is repealed, and no farther. We think it entirely clear that this point was not well taken.

The second point made is, that the court below have no jurisdiction to try the prisoners Allen, McGloyn and Wells, because, although they conspired with Clark and Grady and Tristram to commit the offense, and assisted in the initiation of it in New York, they did not come into this state, and did not assist personally in its attempted completion here.

It is undoubtedly true, as claimed, that the courts of this state can take no cognizance of an offense committed in another state. Such was the decision in Gilbert v. Steadman, 1 Root, 403. But it is true, and universally conceded, that if an offense is committed in this state by the procuration of a resident of another state who does not' himself personally come here to assist in the offense, of a grade below felony, *130such non-resident offender can be punished for the offense by our courts if jurisdiction can be obtained of his person. It is said, however, that if the offense is of the grade of felony no such punishment can be inflicted. As it is more important to protect our citizens against great crimes than small ones, unless such a distinction not only exists but is founded in justice and essential to the symmetry of the law, it should be discarded. Such a rule cannot be founded in justice. The general proposition that no man is to suffer criminally for what he does out of the territorial limits of the country, if applied to a case where the act is completed out of the country is correct; but it is the highest injustice that a man should be protected in doing a criminal act here because he is personally out of the state. His act is here, although he is not. The injustice of the rule has compelled courts of other states to disregard it in cases of great crimes. Thus if a man, standing beyond the outer line of one state, discharges a ball over tbe line and kills another, it has been holden that he was punishable, though the crime was a felony. The reason given for the distinction is, that if the offense is a felony, he sustains the relation to it, if performed by a guilty agent who can be punished, of an accessory and not of a principal,- and that, as technically an accessory, he must be pursued in the locality where he committed the enticement. The doctrine has never been recognized in this state, is inconsistent with our system of criminal law, and does not commend itself to our judgment. In the first place it has not been recognized here. There has been no case in our courts where the prisoner has been indicted, and acquitted because, although a party to the offense, he was not in the state at the time it was committed. On the other hand, in Barkhamsted v. Parsons, (3 Conn., 1,) an inhabitant of Massachusetts was holden punishable here for an act done by his agent; and Chief Justice Hosmer said: “ The principle of common law. qui facit per ahum facit per se, is of universal application, both in criminal and civil cases ; and he who does an act in this state by his agent, is considered as if he had done it in his own proper person.” It is true the offense in that case was not *131a felony; but the learned Chief Justice must have been aware of the distinction claimed, and apparently repudiated it.

In the second place, the doctrine is inconsistent with our system of criminal law. By express statutory provision we have done away with the distinction between principal and accessory in felony; and every person who aids and assists in the commission of a crime, or the protection of a criminal, is made a principal, and punishable and indictable as such. No man therefore can be accessory to a felony which has been committed here, and the doctrine is entirely inapplicable. He is a principal or nothing.

And in the third place, the doctrine as applicable to this country is vicious and should be repudiated. It originated, as Mr. Bishop tells us, in the blunder of some judge, who held that inasmuch as one who attempted to incite another to do an act could only be punished in the county where the attempt was made, therefore one who incited an act which was. actually committed in another county could be punished for the incitement and as an accessory only in the county where the act of incitement was, committed. The blunder was corrected by the statute bf^JMward VI., Chap. 24, § 4, which provided that such accessory might also be indicted in the county where the offense was committed. It would seem that a rule thus originating in a blunder, and applicable only in respect to counties, in the state where the offense is committed, and corrected by express statute, and favoring the commission of crime, ought not to be adopted and applied to states situated as these are, tied together by a ligament giving to the citizens of each citizenship in all. For these reasons we are satisfied that the second objection ought not to prevail.

The third objection arises upon the motion for a new trial, and is that the court permitted evidence to be given of the declarations and statements of Clark, Grady and Tristram, to and with others, in the absence of these prisoners, after the offense had been consummated, and during the Monday and Tuesday next after the Saturday upon which they had stolen *132the property from the express car at Coscob Bridge, and had it in their sole possession at Norwalk.

The objection is not that the evidence was admitted without sufficient proof of the conspiracy, but that the acts and declarations admitted were made after the offense was consummated by the removal of the property from the car. But was the object and purpose of the conspiracy consummated and completed immediately upon such removal of the property from the car? Clearly not. The object and purpose of the conspiracy was not to remove the property from the car simply, or to enable Clark, Tristram and Grady to steal it for their own benefit, but to transport it to New York as the joint property of all, to be there divided ; and until such transportation was completed, and division made, the object and purpose of the conspiracywas not completed, and Clark, Grady and Tristram were still the agents of the prisoners.

The other points raised upon the motion were not insisted upon in the argument, and therefore were not considered.

A new trial should be denied.

In this opinion the other judges concurred.