15 Ala. 259 | Ala. | 1849
The 25th section of the 4th chapter of the penal code enacts, that “ every person who shall fraudulently or feloniously steal the property of another, in any other state or country, and shall bring the same within this state, may be convicted and punished in the same manner as if such larceny had been committed in this state ; and in every such case, such larceny may be charged to have been committed in any county, in or through which such stolen property may have been brought.” Clay’s Dig. 420, § 25. By the 18th section of the same chapter, it is enacted, that “ every person who shall inveigle, steal, carry, or entice away any such slave, with a view to convert such slave to his own use, or the use of any other person, or to - enable such slave to reach some other state or country,- where such slave may enjoy freedom, such person shall, on conviction, be punished by confinement in the penitentiary not less than ten years.” Clay’s Dig. 419. The first question presented under these several enactments, is, whether a party guilty of the offence denounced by the first, can be convicted under a common law indictment for laceny ?
In the State v. Brown, 4 Port. Rep. 413, it was said not to be always sufficient to pursue the very words of the statute, unless by so doing, the fact, in the commission or omission of which the offence consists, is fully, directly, and expressly alledged. So in the State v. Duncan, 9 Port. R. 260, it was held, that where a statute is introductive of a new of-fence, and prescribes its constituents without reference to any thing else, in an indictment founded upon it, it is enough to describe the offence in the very words of the act.” See also, The State v. Click, 2 Ala. Rep. 26; Turnipseed v. The State, 6 Ala. R. 664; Worrel v. The State, 12 Ala. R. 732. In Mooney v. The State, 8 Ala. Rep. 328, the indictment was founded upon the 18th section above recited, and pursued its terms. The court held, that the indictment was not
The 18th section, as it stood at the first enactment of the penal code was in the following words: “ Every person who shall inveigle, steal, carry, or entice away any slave, without the consent of such slave, or shall hire, aid or counsel any person to inveigle, steal, carry or entice away, as aforesaid, any such slave, with a view to convert such slave to his own use, or to the use of any other person, or to enable such slave to reach some other state or country, where such slave may enjoy freedom, such person, on conviction, shall be punished by confinement in the penitentiary, not less than ten years.” The words “ with or,” which preceded (< without ” in the original draft, being unintentionally (no doubt) omitted in copying the act before it became a law. In an indictment for larceny between the time when the code was adopted and this section, was modified in 1843, this court said, “ it will be evident, on looking at this enactment, that it only covers the case of stealing a slave without his consent, and with the particular views, or one of them, indicated by the terms used. It may be asked, how was the stealing of a
It is abundantly shown by the cases cited, that an indictment founded upon that section, should substantially and with particularity alledge the existence of such a state of facts as constitute the offence. Though the proof of them would establish a larceny at common law, it is not sufficient for the indictment to charge that offence in the general terms which are sanctioned by precedent. The statute must be followed, and quo animo the act was committed, must be specially stated. It is clearly indicated by the case cited from 8th Alabama, that the law as it now stands, is introductive of an offence which the common law did not denounce as criminal; and that the crime which was punishable by pre-existing statutes was to some extent modified, and its essential constituents particularized.
If the prisoner could be punished under the indictment, he could only be confined in the penitentiary from two to five years; for these are the shortest and longest terms which the statute defining grand larceny prescribes. So, that even if his conviction was regular, the judgment sentencing him to ten years’ imprisonment would be too long. But the proof did not sustain the indictment; for the 25th section declares that where the larceny is committed in another State, and the property brought into this, the offender “ may be convicted and punished in the same manner as if such larceny had been
This view is decisive of the cause, and relieves us from the examination of the other questions raised upon the record. The judgment is consequently reversed, and the clerk of this court will issue a mandate addressed to the sheriff of Fayette county, embracing therein the judgment of this court, ordering him to demand the prisoner of the warden or lessee of the penitentiary, and requiring the warden or lessee to deliver the prisoner to said sheriff, upon being furnished with a copy of the mandate, and a receipt at the foot thereof, acknowledging such delivery; and commanding the said sheriff to transfer the prisoner to the jail of his county for safe keeping, until he shall be discharged by process of law, or regularly removed to some other place for trial or confinement.