[Smith v. The State.] Smith v. The State. Indictment for Larceny. 1. Local jurisdiction of offense.-Under the statute of this State (Rev. Code, §3948), as at common law, if property is stolen in one county, and carried into another, a criminal prosecution against the thief may be instituted in either county; but this statute is only an affirmation of the common-law rule, not an enlargement of it; and where goods are stolen from a warehouse or dwelling-house (Rev. Code, § 3707), and carried into another county, a prosecution for the statutory offense cannot be instituted in the latter county, though the offender may be there prosecuted for simple larceny. FROM the Circuit Court of Dallas. Tried before the Hon. GEO. H. CRAIG. The indictment in this case, which was found at the March term of said court, 1874, charged that Geta Smith and George Washington "feloniously took and carried away, from the ware-house of J. C. Groce, one bale of cotton, of the value of more than fifty dollars, the personal property of J. C. Groce." On the trial of said Geta Smith alone, as the bill of exceptions shows, the State introduced evidence showing that said defendant and George Washington stole the bale of cotton from the ware-house of said J. C. Groce, which was situated in Wilcox county, and carried it by the river to Selma, in Dallas county, where they sold it; that the owner tracked the cotton, indentified, and recovered it; and that it was worth about seventy dollars. On this evidence, the defendant requested the court, in writing, to instruct the jury, in effect, that they could not convict him of grand larceny. The court refused to give the charge, and the defendant excepted to its refusal. T. W. CLARK, for the defendant, cited 3 Greenl. Ev. § 154; 1 Hale's P. C. 507; 2 Ib. 163; 1 Hawk. P. C. ch. 33, § 9; Bishop's Crim. Pro. vol. 1, § 76; Hoskins v. The People, 16 N. Y. 173. JNO. W. A. SANFORD, Attorney-General, for the State, cited the statute (Rev. Code, § 3948), which, he contended, authorized a prosecution of the offense in either Wilcox or Dallas county. BRICKELL, C. J.-The common law was inflexible, not only that a man should be tried, on a criminal accusation, by [Smith v. The State.] his peers, but that his triers should be of the vicinage-near the place where the offense was alleged to have been committed. The rule, if not gradually relaxed, was at least construed to be satisfied, if the trial was by a jury of good and lawful men of the county in which the offense was committed, or alleged to have been committed. An exception was early recognized, if the offense was in its nature continuous. A simple larceny furnished the most frequent example. The possession of the goods stolen by the thief was a larceny in every county into which he might carry them. The trespass, committed in the original taking, did not, in contemplation of law, divest the true owner of the possession; and every moment's continuance of the trespass and felony is, in legal consideration, a new caption and asportation.-1 Lead. Cr. Cases, 224. The exception was, however, limited to simple larceny. If the original offense was compound, involving more than a simple caption and asportation, while the simple larceny was the subject of indictment in any county into which the thief carries the goods, the compound offense is indictable only in the county in which it was committed. 1 Lead. Cr. Cases, 225; 3 Greenl. Ev. § 152; 1 Bish. Cr. Pro. § 60. If, in the course of a robbery, larceny is committed, the offender could be convicted of the latter, not of the former offense, in any county into which he might carry the goods. So, if the offense is aggravated, because of the place of its commission, as in a store, or other house, the security of which is intended to be protected; of the aggravated offense, the offender is indictable in the county in which it was committed, and not in another county to which the goods may be carried. The offense committed in the latter county is the unlawful caption and asportation, not accompanied with an invasion of the security of a house within the protection of the law creating the compound offense. The statute (R. C. § 3948) declaring, "where property is stolen in one county, and carried into another, the jurisdiction is in either county," is but an affirmation, not an enlargement of the common-law rule to which we have referred, and does not extend to compound offenses, like that imputed to the appellant. While he was indictable in Wilcox county for a felony, if he was guilty of there stealing goods from a ware-house, exceeding in value fifty dollars, he was only guilty of petit larceny, a misdemeanor, if the value of the goods was less than one hundred dollars, in Dallas county, to which he carried them. The felony was not ambulatory, but, by force of the statute creating it, locality is of its essence. [Floyd v. The State.] The rulings of the Circuit Court were adverse to these views, and the judgment must be reversed, and the cause remanded. The prisoner will remain in custody, until discharged by due course of law. Floyd v. The State. Indictment for Murder. 1. Grand juries at special terms.-Under the provisions of the act approved February 13, 1875, "to provide for holding special terms of the Circuit Court" Sess. Acts 1874-5, pp. 201-2), that court has the same power to organize a grand jury at a special term as at a regular term. 2. Special venire for trial of capital case.-The statute which requires that the special renire in a capital case shall include "those summoned on the regular juries for the week" (Rev. Code, § 4173), is shown by a subsequent section (4177) to mean the regular jurors who are in attendance," and not to include those who, though summoned as regular jurors, were excused or discharged when the regular juries were organized. 3. Objection to venire, on account of mistake in name of juror.-A mistake in writing the surname of one of the jurors specially summoned for the trial of a capital case, in the list served on the prisoner, is no ground for quashing the reire, although, excluding the name of that juror, the number specially summoned is less than fifty (Rev. Code, § 4173): the name may be discarded (§ 4175), and another juror summoned. FROM the Circuit Court of Geneva. The indictment in this case was, found at a special term of said court, held on the 19th day of July, 1875, pursuant to an order made and published by Hon. H. D. CLAYTON, the presiding judge of the circuit; and charged the defendant with the murder of Aaron Miller. "At the regular March term, 1876," as the bill of exceptions recites, "the defendant having been arraigned on a former day of the term, and having pleaded not guilty, the cause came on to be heard, and the following proceedings were had: The defendant moved to quash the venire, because the names of all those persons who had been summoned by the sheriff to appear at this term as regular jurors did not appear on said venire, nor on the list served on the prisoner; and proposed to prove, in support of his motion, that on the first day of the term, when the court was organizing the juries, and when the sheriff called the list of those summoned as petit jurors, twentyeight persons answered to the call; that the court, after [Floyd'v. The State.] selecting and impanneling two juries of twelve men each, as the law requires, did not swear any others, nor retain them, but remarked that no more would be needed, and that the others might consider themselves discharged; that this defendant did not consent nor object to this action of the court; and that the four men who were not selected nor sworn were not then present, and had not been specially summoned for this cause, and had not been otherwise summoned as regular petit jurors. The court overruled the motion to quash, and the defendant excepted. 'As the drawing of the jury proceeded, the name Atkinson was drawn; and the defendant again moved to quash the venire, because the person who appeared and answered to said name, and who had been summoned by the sheriff, was named Adkison, and not Atkinson; which motion the court overruled, and the defendant excepted. The court then proposed to the defendant, that he might have the opportunity or not, at his election, to take said Adkison. The defendant refused to say whether he wished the said Adkison put on him, or not; but, when the court offered said Adkison to him, objected to receiving him, or passing on him. Because of this objection by the defendant, the court caused said Adkison to stand aside, and the name of Atkinson to be discarded, and another to be forthwith summoned to supply his place; which was done. To this action of the court the defendant excepted.' W. D. ROBERTS, for the defendant. The statute imperatively requires, that all the regular jurors “summoned for the week" shall be included in the special venire summoned for the trial of a capital case.-Rev. Code, § 4173. And the same statute requires that the special venire shall consist of "not less than fifty persons;" while the record shows that, excluding the name of Atkinson, or Adkison, not fifty persons were summoned. Again, the indictment is void, because found at a term not authorized by law. Davis v. The State, 46 Ala. 80; Overstreet v. The State, 46 Ala. 30; Garlick v. Dunn, executor, 42 Ala. 404. JNO. W. A. SANFORD, Attorney-General, for the State, cited Session Acts 1874-5, p. 201; Fields v. The State, 52 Ala. 349; Rev. Code, $4177; Hall v. The State, 40 Ala. 698; Bill v. The State, 29 Ala. 34; Birdsong v. The State, 47 Ala. 68; Wesley v. The State, 52 Ala. 182. MANNING, J.-The special term of Geneva Circuit Court, at which the indictment in this cause was found, was held in pursuance of the "act to provide for holding special terms [Floyd v. The State.] of the Circuit Court," approved February 13, 1875. By it, are given the same power, jurisdiction and authority, at a special term, "to organize a grand jury, and to try and dispose of all causes that may come before said court, both civil and criminal, and to do and perform all the business of such court, as at a regular term of such court." The objection raised to the finding of the indictment at a special term of the court, or at a term not authorized by law, is not sustained. The indictment is in the form prescribed by the Revised Code, and is, therefore, sufficient. 2. Section 4173 of the Revised Code requires, for the trial upon indictments charging a capital offense, that an order be made, "commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for the week," from which to constitute a jury to try the accused. Persons who were summoned for regular jurors, but did not appear, or who, appearing, were for some cause excused, or who, because the regular juries for the week were completed before their names were drawn out, were discharged, and departed from the court, although "summoned," cannot be said to be "on the regular juries for the week." The expression used in the statute is ambiguous and incorrect. What is meant by it, is shown by section 4177: On the trial of a person charged with a capital offense, the names of the jurors summoned for his trial, as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken together; and such officer as may be designated by the court must, in his presence, draw out the slips, one by one, until the jury is completed," &c. Evidently, therefore, it was "the regular jurors" who were "on the regular juries for the week," and not those who had been summoned to compose them and excused, that were to be included in the fifty or more persons, from which a jury to try the accused was to be constituted. And even this direction, that the regular jurors be included in the list, is not founded on any idea of benefit to the accused, but of convenience to both the sheriff and citizens; which would be consulted, by having the jury co posed, as largely as a due regard to the attainment of impartial justice would allow, of the jurors who were already in court, and held there for the transaction of its business. It could not be assumed that these persons would be any more favorably disposed toward the accused, than any like number of other citizens would be. The objection of prisoner's counsel to the omission from the list served on his client, of the names of those who had been summoned to |