State of Ohio v. Chapman, Jr.

of the court, the proof establishes the fact, that Chapman had the indictment in his possession; that he kept it a long time; that he was inquired of and denied all knowledge of it, and that he was, at the same time, the attorney for Alexander and others; that he afterward returned the indictment to the clerk's office, secretly, and placed it in the proper files. If the evidence were to close here, there would be but one opinion-that of guilt; that the charge of larceny, of secreting the indictment, withholding it from the clerk, and attempting to obstruct and hinder public justice, were sustained. It, however, appears from the evidence, equally clear, to a majority of the court, that Chapman neither stole the indictment, nor knew that he had it, when inquiry was made; that it was probably mislaid; but, as soon as discovered, he replaced it secretly, upon the files. This return of the indictment, secretly, can not be commended. It deserves severe rebuke; but still, I can hardly think it evinces, under the circumstances, any criminal design. Had his intent been criminal, Chapman would doubtless have destroyed the indictment, and not hazarded exposure by its return. He ought, truly and frankly, to have admitted his error, and delivered the indictment to the clerk. There had, however, been 434] *crimination and recrimination; the whole elements of society seem to have been agitated and disturbed, and it is, after all, not very remarkable that Chapman had not sufficient moral courage to admit he had the indictment, and to openly return it.

Let us then, briefly, see how this case stands. Chapman is charged with being convicted of stealing the indictment. He is charged with secretly taking it, with holding and secreting it from the clerk, and with intention to obstruct and hinder public justice.

The truth is, he had it innocently, he knew not it was in his possession, and denied having it; and when found, he returned it secretly, and, with this secret return, if criminal, immoral, or fraudulent, he is not accused. It is, therefore, the opinion of a majority of the court, that the charges are not sustained by the proof, and that they should be dismissed. Rule discharged.

LANE, C. J., dissenting. I can not agree with my brethren in their conclusion. When two verdicts have found, in terms, that an individual has stolen the records of a court, which verdicts

Hamilton v. State of Ohio.

have been approved by the tribunals where they were rendered, and which seem to be sustained by the testimony before us, I regard him as an unfit person to continue any longer a member of the Ohio bar.t

*WILLIAM S. HAMILTON V. THE STATE OF OHIO. [435

A person having possession, in this state, of property which he had stolen in another, may be convicted here of larceny.

THIS is a writ of error, to the court of common pleas of Lawrence county.

The plaintiff in error was indicted for horse stealing. The court charged the jury that if the horse was stolen by the accused in the State of Illinois, and brought by him into the State of Ohio, he might be convicted of the crime of horse stealing in this state. This charge is claimed to be erroneous.

LEGRAND BYINGTON, for the plaintiff in error:

The doctrine of a new larceny for every fresh asportation, as known to the common law, is confined to the limits of the sovereignty, and can not be extended beyond it. This is supported by the following considerations:

1. The grade of the offense, the mode of trial, the quantum of punishment, and the process of expiation, would all be liable to be varied by the offender crossing a state line.

2. It would subject the offender to trial in a tribunal powerless to compel the attendance of witnesses necessary to establish the time, manner, and place of the original taking, and to explain the possession.

3. It would render nugatory, as to this offense, the act of Congress providing for the surrender and delivery of fugitives from justice.

4. It would abrogate the provision of the constitution that no one "shall be twice put in jeopardy for the same offense," for the

†Browne's case, 1 How. 303; Holding's case, 1 McCord, 379; 3 Paige, 510; Brownsel's case, Cowp. 829; Southerly's case, 6 East, 143; Smith's case, 5 Eng. Com. Law, 172; Kempton's case, 2 Ves. & Beame, 352.

Hamilton v. State of Ohio.

record of conviction or acquittal would not be binding in another

state.

436] 5. It subjects a person to penalties for an act not denounced by the laws of this state.

All crimes punishable by the laws of this state are statutory. They can not exist independent of statute. The penalties are prescribed by statute; but in this state there is no statute making it an offense to possess property stolen in another or prescribing any punishment for such offense. Nor can it be necessarily presumed that stealing a horse in Illinois constitutes there an offense of the same grade and subject to the same penalties as in this state. Necessity furnishes no ground for our courts to assume jurisdiction in such case. For the act of Congress has provided ample means whereby an offender against the laws of one state found within the limits of another can be reclaimed and brought to justice.

It is not sanctioned by the common law; for a larceny committed in Scotland or Ireland could not be tried or punished in the English courts until acts of parliament, 13 Geo. III, ch. 31, 54, and 44 Geo. III, ch. 92, 57, were passed. 4 Chitty's Blackstone, 25, note 12.

It has also been held, in various states in this Union, that a person can not be convicted of larceny upon bringing into one state property stolen in another, as in the cases of the People v. Gardner, 2 Johns. 477; People v. Schenck, 2 Johns. 494; The State v. Brown, 1 Hayward, 100. These cases are cited and referred to in 1 New York Digest, 102; 2 Russell on Crimes, 176, note 1.

The charge of the court, therefore, is not sustained by the statute, the only foundation for criminal jurisdiction; and it is opposed to the common law and the practice in other states.

S. M. TRACEY, for the state:

The cases in 1 Mass. 116; 2 Mass. 14; 5 Binn. 617; 3 Conn. 185, and 1 Root, 69, sustain the charge of the court.

Of the cases cited on the other side, that of Gardner, 2 Johns. 437] 477, is the leading case in this country. It is of *no authority, per se, because the court assign no reasons, but merely refer to 2 East's Pleas of the Crown, 774, tit. Larceny and Robbery, sec. 157. East here states the common-law doctrine, "that possession of goods stolen by the thief is a larceny in every county into which he carries the goods; because the legal possession still remaining in the true owner, every moment's continuance

Hamilton v. State of Ohio.

of the trespass and felony amounts to a new caption and asportation. To this, however, there are some exceptions; as where the original taking is such whereof the common law can not take cognizance. And the same exception prevailed till lately in cases where the original taking was in Scotland," citing Rex v. Anderson et al., MS. case. "But that by the statute (13 Geo. III), the exception had ceased to prevail. This statute of 13 Geo. III is declaratory of the common law doctrine."

Gardner's case is not sustained by the authority to which it refers, and consequently imposes upon New York, also, the necessity of enacting a statute declaratory of the common law. 11 Wend. 129.

LANE, C. J. The question on the record is not new, but has often arisen here and elsewhere. In Tennessee, Kentucky, and Pennsylvania, possession, by the thief, of property in one state which has been stolen in another, is not held sufficient for conviction. Such has been the doctrine in New York, although against the opinion of a late chief justice; but the power to convict, in such cases, has now been given by statute. In Massachusetts and Connecticut, such convictions have always been sustained. In England, the original taking must be within the kingdom.

A majority of the court entertain the opinion that a longsustained practice in the criminal courts of this state has settled the construction on this point and established the right to convict in such cases. But, if not settled by usage, we feel free to choose, between these conflicting practices, a course best sustained by analogy and best calculated to promote justice.

*It would afford a large immunity for crime if thieves [438 from other states were exempted from any other penalty than the remote risk of being returned to the place where the crime was first committed. We feel no scruples in inflicting his punishment here, and are justified, as well by the cases cited as by holding each continued possession, in our jurisdiction, of property stolen within another, as a crime well deserving the penalty of the law. Judgment affirmed.

READ, J., dissenting. In this case I am unable to concur with my brethren in the legal proposition, that a person stealing property in a sister state or a foreign jurisdiction, and bringing it.

Hamilton v. State of Ohio.

within the State of Ohio, may be here indicted and punished for the larceny. It is from no over-sympathy with the criminal, but a belief that the law will not authorize this conviction. He may

be sent back to the state where the offense was committed and there punished, but not here.

This question is not new. It has been held that larceny com. mitted in one of the United States is not punishable in another, although the thing stolen be brought into the latter state. Such are the decisions in Pennsylvania, New York, Tennessee, and North Carolina. State v. Brown, 1 Hayw. 100; People v. Gard. ner, 2 Johns. 477; People v. Schenck, Id. 479; Commonwealth v. Simmons, 5 Binn. 617; McCullough's case, Rogers, 45. To the contrary, the Commonwealth v. Collins, 1 Mass. 115; Commonwealth v. Andrew, 2 Mass. 14; State v. Ellis, 2 Conn.

The State of New York has since provided, by statute, for punishing such possession within her limits, upon which the decision in 11 Wend. 129, was made. True, Judge Savage remarks that it was his opinion such case might be punished prior to the statute. But it must be recollected that he speaks in reference to himself as prosecutor, as he prosecuted the case of the People v. Gardner, when the court refused to sustain him.

439] *Upon what principle can such conviction be sustained? Is it upon a constructive new taking in every state where the thief may be found in the possession of the thing stolen? This principle was applied to the possession of the thing stolen, at common law, in every county where the thief might be found in such possession, to authorize conviction for the original theft, but never as between independent jurisdictions or states. At common law, if a person stole goods in a foreign state, or even in Scotland, Ireland, or the Isle of Jersey, or at sea, and brought them into England, he could not, upon a constructive taking, be punished for theft in England. To meet cases within the united kingdom the statute of 7 and 8 Geo. IV, ch. 29, sec. 76, was passed. Even now, persons stealing within foreign jurisdictions or states, and found in possession of the thing stolen, are not punishable in England. Roscoe's Crim. Ev. 589; 2 Eng. Crown Cas. 329.

Upon what principle can it be held, in Ohio, that a person found in the possession of a thing stolen in a sister state should be construed to have stolen the thing in Ohio? Not upon the common-law principle, for the common law expressly forbids it.