State v. Kline

Citation33 So. 618,109 La. 603
Decision Date05 January 1903
Docket Number14,525
CourtSupreme Court of Louisiana
PartiesSTATE v. KLINE et al

Rehearing denied February 6, 1903.

Appeal from criminal district court, parish of Orleans; Frank D Chretien, Judge.

George I. Kline and Robert L. West were convicted of larceny, and appeal. Affirmed. Removed by error to the Supreme Court of the United States.

Henriques & Dunn (Henry L. Lazarus, of counsel), for appellants.

Walter Guion, Atty. Gen., J. Ward Gurley, Dist. Atty., Samuel A Montgomery, Asst. Dist. Atty., and Henry Mooney, Asst. Dist Atty. (Lewis Guion, of counsel), for the State.

OPINION

NICHOLLS, C.J.

Statement of the Case.

The two defendants were found guilty, and each sentenced to suffer imprisonment in the State Penitentiary for a term of three years, and to pay the costs of prosecution. They appealed.

The information upon which they were tried charged the crime to have been committed on the 4th of January, 1902, in the parish of Orleans, and within the jurisdiction of the criminal district court for the parish of Orleans; that the property stolen belonged to Paul G. Thebaud, and when stolen they were in the parish of Orleans, and within the jurisdiction of the criminal district court.

The first bill of exception submitted to us is to the action of the court in respect to an exception which they had filed to the jurisdiction of the court. In this exception they set out that the court ought not to take cognizance of the cause, because the record and evidence taken before Thomas M. Gill, judge of the First city criminal court for the parish of Orleans, on February 19, 1902, affirmatively showed that the criminal district court had no jurisdiction over the accused, nor over the matters alleged, charged, and specified in the information, because: (1) On the examination thereof before the said First city criminal court the witness Paul G. Thebaud, being sworn on behalf of the state, did testify that the alleged larceny, as therein set forth, was committed in the state of New York, and not within the jurisdiction of the criminal district court.

(2) Because the said Paul G. Thebaud is alleged in the information to be the owner of the property alleged to have been stolen.

(3) Because, under the law, where property stolen in another state is brought to this state, if even by the thief, the crime of larceny is not committed in the state of Louisiana.

(4) Because the said Paul G. Thebaud, in his testimony before the First city criminal court, and which was on file in the criminal district court and part of case No. 31,923, then before the latter court, testified that the accused were not the persons who committed the alleged larceny, but, on the contrary, that the larceny of his goods and chattels, as charged in the information, was committed in the state of New York, and by one Edward Kern, who was then in his employ.

(5) For the further reason that if a larceny was committed in the state of New York, and stolen goods were brought into this state, the courts of Louisiana have no jurisdiction either over the person or the subject-matter of the offense; that the jurisdiction over the offense is in another tribunal, to wit, the court or courts of the state of New York.

The court made the following ruling on the exception:

"On the preliminary examination of the charge made against Robert L. West and George I. Kline, of grand larceny, before the First city criminal court, certain parties were examined by the judge of that court in order to determine whether there was such a case as would justify the sending of the parties to the proper tribunal to be tried. After an investigation the case was sent to the criminal court, to be tried according to law. Subsequently -- that is to say, on the 25th of February, 1902 -- an information was filed against the two accused for grand larceny. They were arraigned, and, upon their arraignment, leave was asked to file any plea that the accused might desire thereafter. Subsequently a plea to the jurisdiction of the court was filed. Upon the trial of this plea the accused, through their counsel, proposed to offer in evidence the testimony of the witnesses mentioned in the offer made by them, upon which to rest the plea which they had filed on the ground that the testimony formed part of the record of the criminal district court.

"The testimony taken in the lower court is not testimony in the criminal district court unless offered anew, and only under certain contingencies provided by law can it be used at all. The state charges in the information a certain crime against the accused, which must be established by the state upon proper evidence, and what evidence will be introduced can only be disclosed upon the trial of the case. I do not consider that the testimony taken in the lower court is testimony in this court, and part of the record in the district court. It will become part of the record only after offer, and it can be offered and used only under certain circumstances. I therefore maintain the objection of the state, as I am of the opinion that the testimony offered, and intended to be used as the basis to the plea to the jurisdiction, is not testimony, and cannot be considered by the court, unless it be offered under the provisions of law now existing, governing such offers. The court further rules that, the plea having been submitted to the court, the same is referred to the merits, to be there tried after testimony shall have been offered, in order to determine from that testimony whether the court has jurisdiction of the subject-matter or not.

"Counsel embodied in their bill, as part thereof, the testimony of Paul G. Thebaud, T. E. Manners, alias Kern, and the witness Sergeant John F. Kelly of New York City."

It appears that later, and during the trial of the case, the testimony of Paul G. Thebaud and Edward Kern, alias Manners, which had been taken in the First city criminal court, was permitted to be read to the jury over the objections made by the defendants thereto, as shown by their bill of exception taken in relation to the same, and that, after this testimony had been read, defendants again excepted to the jurisdiction, but that, the action of the court being deemed by them prejudicial and illegal, they excepted, and filed a second bill of exception on this subject of jurisdiction. In their bill they aver that the testimony of the witness Paul G. Thebaud showed that the jewelry charged to have been stolen from him had been stolen in the city of New York, and that the perpetrator of the crime was Edward Kern, Jr., and not the defendants, and furthermore showed that the said Edward Kern, Jr., alias Manners, was in his employ at the time that he committed said offense in the state of New York; that he did not know the accused; that he had never seen them, and that the person who committed the larceny was Edward Kern, Jr.; that the larceny was committed out of the jurisdiction of the criminal district court, as was evidenced by said testimony.

The action of the court upon defendants' plea, and its reasons for the same, are set out at the foot of the bill of exception, as follows:

"After the state had read the deposition of Paul G. Thebaud and Edward Kern, otherwise known as Manners, taken before the First city criminal court, the accused filed a plea to the jurisdiction of the criminal district court, founded upon the ground that the jewelry charged to have been stolen from him by the accused at the bar had been stolen from him in the state of New York by Edward Kern, Jr., in December, 1901. The state has not closed its case, and whether it will establish hereafter the proper venue can only be determined by the testimony to be offered. If, instead of West and Kline being charged to have committed the offense, the information had charged Edward Kern, Jr., with the offense, and the asportation was shown to have taken place in New York, there would be no doubt as to the force of the plea filed, for our law does not recognize continuous asportation of property, and, the taking in that case having been in New York, the offense would not exist in this state by the mere transportation of the property from the place of taking to this place. But the information does not charge Edward Kern, Jr., or Manners, with the crime, but George I. Kline and Robert L. West.

"It is elementary in law that a thief may steal from a thief; the dominion over the property by the first thief being considered, by fiction, as that of the owner.

"West and Kline can therefore be charged with having stolen property from P. G. Thebaud, in this city, on the 14th of January, 1902, notwithstanding that the property had in December, 1901, been stolen by Kern, otherwise known as Manners, from Thebaud, in New York. If the property stolen be proved to have been stolen from Kern, in this city, on the 14th of January, 1902, the charge would hold, under the law, notwithstanding the fact that the property had on December, 1901, been stolen by Kern from Thebaud in the state of New York.

"The accused on a previous day filed a plea to the jurisdiction of the court, founded on the same ground, which plea had been referred by the court to the merits of this case. Both pleas are now considered by the court, and, for the reasons given, they are overruled; reserving to the accused the right to file pleas to the jurisdiction of the court hereafter, should occasion demand or justify it."

Counsel embodied in the bill of exception the testimony of Thebaud and Manners, taken before the First city criminal court.

The third bill of exceptions, to which we direct our attention is one in which it is recited that, a jury having been called and impaneled to try the case, the state called two...

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