Howell v. Commonwealth

• Decision Date: 12 January 1948
• Citation: 46 S.E.2d 37,187 Va. 34
• Parties: HOWELL. v. COMMONWEALTH.
• Court: Virginia Supreme Court

46 S.E.2d 37

187 Va. 34

HOWELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 12, 1948.

Error to Circuit Court, Westmoreland County; E. Hugh Smith, Judge.

Arthur Rice Howell, alias Jack J. Dillard, was convicted of bringing into Virginia property stolen by him in Maryland, and he brings error.

Affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, and MILLER, JJ.

R. O. Norris, Jr., of Lively, and Charles E. Stuart, of Montross, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

BUCHANAN, Justice.

The defendant has been convicted, under section 4769 of the Code, of bringing into Virginia property stolen by him in Maryland, and sentenced to serve three years in the penitentiary.

His sole complaint is that the Circuit Court of Westmoreland county, where he was arrested, did not have jurisdiction to try him. This point was made by a motion to dismiss the indictment, renewed at the conclusion of the testimony, and overruled. It is not claimed that the evidence of the substantive offense was insufficient. The basis of the motion was that the defendant was arrested on this charge while in jail in Westmoreland county on a different charge, and was, therefore, not "found" in Westmoreland county within the meaning of the statute.

The statute (§ 4769) provides: "Prosecution for offenses committed wholly or in part without and made punishable within this State may be in any county or corporation in which the offender is found or to which he is sent by any judge, justice, or court; and if any person shall commit larceny or robbery beyond the jurisdiction of this State and bring the stolen property into the same he shall be liable to prosecution and punishment for his offense in any county or corporation in which he may be found as if the same had been wholly committed therein."

The indictment charged that this defendant and another, on or about April 14, 1946, stole two power saws worth $1,400 in Anne Arundel county, Maryland, brought them into Westmoreland county, Virginia, and were found with them in their possession, contrary to the provisions of said statute.

The facts were agreed "incident to the issue raised by the motion of the defendant by counsel to dismiss this indictment on the ground that the Circuit Court of Westmoreland County, Virginia, had no jurisdiction in the premises under section 4769 of the Code of Virginia."

From the agreed facts and a certificate by the trial judge, it appears that the two saws were stolen in Anne Arundel county, Maryland, on or about April 14, 1946, and the accused sold these identical saws in Westmoreland county, Virginia, on May 1, 1946, to one Frank Watson.

Afterwards, on October 5, 1946, a power saw was stolen from the Arkay Lumber Company in Westmoreland county, Virginia. A warrant was issued charging thedefendant with the larceny of this saw; he was arrested in Maryland on a fugitive warrant, waived extradition, was brought back to Westmoreland county and lodged in jail. He was later tried and acquitted on this charge, but while he was in jail awaiting trial (the motion to dismiss stated it was while he was under bail), he was indicted and arrested on the present charge of bringing into Westmoreland county the two saws stolen by him in Maryland.

As we understand defendant's contention, it is that when arrested he was in Westmoreland county against his will; that is, he was there in custody after being brought back from Maryland on the charge of theft committed in Westmoreland county, and was, therefore, not "found" in that county in the sense intended by the statute as a prerequisite to the court's jurisdiction.

The complete statute is the result of two legislative enactments. The first was chapter 10, Acts 1877-8, p. 313, carried into the Code of 1887 as section 3890, and which enacted the first clause of the present section ending with the word "court." That Act came under review in Strouther v. Com., 92 Va. 789, 22 S.E. 852, 53 Am.St. Rep. 852, where it was relied on to support a larceny indictment against the defendant in that case for stealing a horse in West Virginia and bringing it into the city of Winchester, Virginia. However, it was held that the Act "was only intended to define the jurisdiction of our courts to try offenses arising under certain special statutes, and has no application here." 92 Va. at page 790, 22 S.E. at page 852, 53 Am.St.Rep. 852.

It was stated in that case that it was a settled principle of the common law in England that where property was stolen in one county, and the thief was found with the stolen property in his possession in another county, he could be tried in either county, notwithstanding the general rule that every prosecution for a criminal cause must be in the county where the crime was committed; that this exception grew out of a fiction of the law that where property has been feloniously taken, every act of removal or change of possession by the thief constituted a new taking and asportation and as the right of possession, as well as the right of property, continues in the owner, every such act is a new violation of the owner's right of property and possession. "There is no principle in respect to larceny better settled than this, and it has received repeated sanction in this state. [Com. v. Cousin,] Cousin's Case, 2 Leigh [708] 709, " 92 Va. at page 791, 22 S.E. at page 852, 53 Am.St.Rep. 852.

It was said, however, that this rule of the common law was never extended farther than to counties, and did not apply as between States; that a number of States had enacted laws for the punishment of such offenses and the question ought properly to be addressed to the Legislature.

The Strouther case was decided in September, 1895, and the Legislature at its 1895-6 session added as an amendment the last clause of the present section 4769, with which we are here concerned.

It is to be observed that the clause so added does two things: (1) Makes it a crime to bring into this State property stolen in another State; and (2) prescribes the venue for the prosecution of the offense.

The constitutionality of the statute, so far as it declares the crime of larceny, is clear. It makes statutory the principle recognized in Strouther's Case, supra, and restated in Dunlavey v. Commonwealth, 184 Va. 521, 35 S.E.2d 763, that every act of removal or change of possession is a new violation of the owner's right. It is not an attempt to enforce the criminal laws of another State, but defines and punishes an offense committed in this State. Many States have similar statutes; others recognize the offense without the aid of a statute. 32 Am.Jur., Larceny, § 98, p. 1012.

Such statutes are very generally held constitutional against such objections as are advanced in this case--double jeopardy, trial by an impartial jury of the county, denial of process for summoning witnesses, and the like. See annotation to Shultz v. Lainson, Iowa, 156 A.L.R. at pp. 865, 886; Clark & Marshall on Crimes, 4th ed., p. 671; Brill's Cyc. of Criminal Law, § 315, pp. 555-6; State v. Ellis, 3 Conn. 185, 8 Am.Dec. 175; Worthington v. State, 58 Md. 403, 42 Am.Rep. 338; People v. Wil- Hams, 24 Mich. 156, 9 Am.Rep. 119 (opinion by Judge Cooley).

The defendant contends that he was not "found" in Westmoreland county in the sense meant by the statute because he was not there voluntarily, but because he was brought there under arrest after waiver of extradition. It is well settled that a person brought into a State under extradition proceedings to answer for a specified crime may be arrested and tried for another and different crime. Lascelles v. State of Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L. Ed. 549. This principle is now statutory in Virginia. Code, section 5070bb, provides:

"After a person has been brought back to this State by, or after waiver of extradition proceedings, he may be tried in this State for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition."

Defendant says this means crimes "over which a court of this State would have territorial jurisdiction." This prosecution was for an offense committed within the borders of the Commonwealth and her courts have full power to try such charges. See also 22 C.J.S., Criminal Law, § 144; Tracy v. State, 25 Ala.App. 417, 147 So. 685; Humphrey v. State, 46 Ga.App. 720, 169 S.E. 53.

Section 2 of article 4 of the Federal Constitution provides for extradition of persons who shall flee from justice in one State "and be found in another State." In Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562, accused was extradited from Oregon to Texas, and there tried for murder and acquitted. Thereupon, Georgia demanded her rendition as a fugitive from that State. She resisted on the ground that not having fled to Texas voluntarily but having been brought there from Oregon on extradition, she was not a fugitive from the State of Georgia to the State of Texas. It was held that she was a fugitive from the justice of Georgia and was "found" in Texas within the meaning of the Constitution. See also In re Jones, 54 Cal.App. 423, 201 P. 944.

Defendant also insists that the clause of section 4769, being considered, fixes the venue for the trial of defendant in the county or corporation "not to which he has brought the stolen goods but where the officer armed with a warrant...