State v. Somerville

21 Me. 14 | Me. | 1842

The opinion of the Court was afterwards drawn up by

Shefley J.

— The first question presented is, whether the proof of property was sufficient. It is contended, that the testimony discloses an arrangement by which Zabdiel Hyde should be the ostensible owner and should hold the property for the benefit of William Hyde. If the purchases were made in the name of the former and held avowedly for the benefit of the latter, a trespasser could not be permitted to impugn the arrangement or question its propriety. Proof that the person alleged to be the owner had a special property, or that he held it to do some act upon it, or for the purpose of conveyance, or in trust for the benefit of another, would be sufficient to support the allegation in the indictment. 2 East’s P. C. 654; Wymer’s case, 4 C. & P. 391; Rex v. Boulton, 5 C. & P. 537.

The second question for consideration is, whether the prisoner can be considered as committing the crime since the Revised Statutes took effect, in respect to those articles which he had stolen before, and retained in his possession since that time. The doctrine of the common law is, that the legal possession of goods stolen continues in the owner, and every moment’s continuance of the trespass and felony amounts in legal consideration to a new caption and asportation. It is upon this principle, that a person stealing goods in one county and carrying them into other counties is considered as guilty of the crime, and may be indicted and convicted in any county, where he has carried them. 1 Hale, 507 ; Hawk. b. 1, c. 33, §52; 2 East’s P. C. 771. And this rule has been applied, when the goods have been altered in their character before carried from one county to another. But in such a case the indictment should describe the goods in their altered and not in their original slate. 2 Russ. 174. This rule of the common law determines, that the prisoner was guilty of theft at all times, while he retained the possession of the stolen goods, as well before as since the revision of the statutes. The person in such cases is not considered as guilty of more than one offence, and an acquittal or conviction in one county or at one period would be a bar in other counties and at other periods.

The third question relates to the finding of a general verdict of guilty, under instructions that there was not sufficient evidence of property as alleged, to enable the jury to find the prisoner guilty of stealing certain books named. By the Revised Statutes, it is provided, that “ any person convicted of an offence in the District Court, may allege exceptions to any opinion, direction or judgment of said Court.” In this case the Court does not appear to have passed any judgment, and the instructions on this point were favorable to the prisoner. The bill of exceptions states, that “ to the foregoing rulings and directions of the Court the defendant excepts as being against the weight of evidence and against law, and here, in Court, and before sentence passed, prays that the said exceptions may be allowed and that said verdict may be set aside as erroneous and unjust. And said defendant also alleges against and excepts to said verdict as being against law and against evidence, and without evidence and against the instructions of the Court.” It does not appear, however,, that any motion was made in the District Court to set aside the verdict for any of these causes, or that the Court expressed any opinion respecting the finding of the jury. A bill of exceptions under the provisions of the statute, cannot present legally to this Court, or call upon it to decide upon any other matter than the opinion, direction, or judgment of the District Court. Any irregularities in the proceedings, or errors of the jury, are not and cannot be legally presented, except through some opinion, direction or judgment of the District Court upon them and on a matter not submitted to its discretion. Whether the prisoner should be entitled to a new trial for any error committed by the jury, or whether such error, if any, may not be cured by entering a nolle prosequi, as has been proposed by the Attorney General, are questions not legally presented to the consideration of this Court.

Exceptions overruled and case remanded to the District Court.