2 Mass. 14

March, 1806

Goods are stolen in New Hampshire, and brought into this state: indictment lies against the receiver of them here.

Receiver of stolen goods sentenced to pay the treble value.

THE indictment set forth that one Amos Tuttle, at Boston, in the county of Suffolk, feloniously stole certain goods, the property of Moses Dow; and that the defendant, Andrews,“at Boston, aforesaid, in the county of Suffolk, aforesaid, on the same second day of July, did abet and maintain him, the said Tuttle, in committing and perpetrating the said felony and theft, and there, after the said goods and chattels were stolen, as aforesaid, knowingly did receive all the same goods and chattels of him, the said Tuttle, knowing the same to have been stolen, taken, and carried away, as aforesaid, against the peace,” &c.

It appeared, in evidence, that Tuttle stole the goods at Bedford, in the state of New Hampshire, and immediately brought them to Dunstable, in Massachusetts, and there concealed them in a wood. He was pursued, arrested, carried back to New Hampshire, and there committed to prison. By information obtained from him while in prison, by one Symonds, whom Tuttle believed to be an accomplice, but who, in fact, was the agent of a voluntary association instituted for detecting thieves, &c., and bringing them to punishment, the goods were found, and, with Tuttle's consent, carried to Groton, in the county of Middlesex, and afterwards to Harvard, in the county of Worcester.

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In the mean time, Symonds, for a sum of money much less than the value of the goods, procured from Dow a bill of sale, or release of his right in them, without disclosing to him that he had them in possession, and with the sole view, as he testified, of procuring the conviction of Andrews, whom he and his associates believed to be in the practice of receiving stolen goods. Tuttle, having been liberated on bail, in company with Symonds took the goods at Harvard, brought them to Boston, and there sold them to Andrews, the defendant, in a manner, and under circumstances, which showed satisfactorily that he must have known them to have been stolen. The defendant was convicted; and now Parsons and Otis, of counsel for him, moved for a new trial, as on a verdict against evidence.

Otis. Each of the United States was originally wholly independent of the others. The courts of one independent state never animadvert on crimes committed in another, unless in virtue of some national compact. The federal constitution, the only compact between the several states, expressly excludes the idea of such a jurisdiction. By art. 4, sect. 2, “ A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” And this provision of the constitution not only excludes, in fact, the idea of such a jurisdiction, but entirely takes away any pretence of the necessity of assuming it, from an apprehension that crimes may go unpunished.

Was it ever known that one, stealing goods in France, and bringing them into England, was held to be amenable to the laws of the latter country as an offender? The law which provides that, where a stroke is given in one county, from which death follows in another, the offender may be tried in the latter county, can by no construction be extended to the case of countries under distinct and independent jurisdictions. In the case of Butters & Al., [Note 1] the court refused to take cognizance of

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the offence, which was stealing goods at sea and bringing them into the county, because the original taking was not a felony committed within the jurisdiction of the court.

Before the statute of 13 Geo. 3, c. 31, the courts of one part of the United Kingdom of Great Britain could not take cognizance of a larceny committed in the other part, although the goods stolen were brought into the first. [Note 2] Great confusion would arise in these states from this assumption of jurisdiction. The same offences are punished with different degrees of severity in the different states.

But it is suggested that the second taking by Tuttle, in company with Symonds, was a new theft from Dow. If this is so, then Tuttle may be twice indicted and punished for stealing the same goods. But we say that, in any view of the facts, there is no evidence of a theft by Tuttle in Suffolk, which the indictment alleges. Symonds and Tuttle brought the goods to Boston, under a sale from Dow, and if that sale is considered void, as a real transfer of the property, it must be allowed, at least, to operate as a license to Symonds, and to have made him the agent of Dow. If the possession of Tuttle, when with Symonds, was felonious, the possession of Symonds was so likewise; and he and his associates, amongst whom are several respectable magistrates, are all guilty.

But the present defendant knew nothing of this second taking; and if the taking in New Hampshire was no offence against our laws, he knew nothing of the real felony, from which the criminality of his conduct is to be inferred.

Davis, ( Solicitor-General.) This point has been repeatedly decided. The case of the Commonwealth vs. Thomas Cullens [Note 3] settles it. The case of Paul Lord, in the county of York, was similar. He broke open a shop in Somersworth, ( New Hampshire,) and stole goods, which he brought into Berwick, in the county of York. He was indicted for stealing in York. This question was then made, and argued by Mr. Parsons for the prisoner. It was determined by the whole Court,

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five justices being present, that he might be convicted of the larceny, although not of breaking the shop. (The Chief Justice recollected this case, as stated.)

The reason that a felon, stealing goods in one county and bringing them into another, may be indicted in the second county, applies equally to stealing in one state and bringing them into another, viz., that every moment's continuance of the trespass is as much a wrong, and may come under the word cepit as truly, as the first taking. [Note 4] It is true that one giving a stroke, in one state, of which the party dies in another, cannot be indicted where the death happens; and the reason is, that there is no continuance of the action, as in the case of stealing. The court refused cognizance in the pirates' case because the Admiralty had complete jurisdiction of the offence, and there was no hazard of a failure of justice. The statute of 13 G. 3 was expressly made to remove a doubt stated in the preamble. But the decisions of this Court, which have been quoted, show that no doubts have been entertained here. As to the knowledge which Andrews had of the circumstances, it is not conceived necessary, in order to fix the charge upon him, to show that he was minutely acquainted with the history of the transaction, or even that he should be told, in so many words, that the goods had been stolen. It is enough that he had sufficient ground, from the manner of the communication, to believe them stolen.

Though the indictment lays the offence to have been committed against a statute, yet, if the facts alleged, and which are found by the verdict, constitute an offence at common law, the conviction may be supported, and the Court will not suffer the crime to go unpunished.

Sullivan, ( Attorney-General.) Unless we have proved a theft by Tuttle, and a receiving by Andrews, both in the county of Suffolk, I concede that the indictment has not been supported. I acknowledge, too, that if the theft had been laid to be committed in New Hampshire, and the receiving by the present

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defendant in this county, it would have been bad, and Andrews could not have been convicted. I agree, too, that, unless we have shown that the defendant knew the goods to have been stolen in this state, he is not legally convicted. But I contend that, every moment that Tuttle had the goods in possession, he was feloniously stealing them. The law considers them in the possession of the proprietor until he is legally divested of that possession. [Note 5] We introduce the transactions which took place in New Hampshire for no other purpose than to show the animum furandi with which Tuttle first became possessed of the goods. The same disposition continues in him until he delivers them to the defendant in Boston. There only we allege the crime in each of them, and we say that this whole transaction, so far as we ask the animadversion of the Court upon it, took place in the county of Suffolk.

Parsons, in reply. The question is, whether a person stealing goods in New Hampshire, and bringing them into this state, becomes a felon, by our law, as soon as he passes the divisional line of the two states. A few decisions of this Court are not to make the law, unless those decisions can be reconciled to the principles of the common law.

The true reason why the court refused to take cognizance of the offence committed by the pirates (3 Inst. 113) was, that the Admiralty would still have had jurisdiction, and the defendants might have been twice punished for the same fact.

The suggestion, in the preamble to the statute 13 G. 3, that doubts had existed, is nothing more than courtly language. No such doubts will be found in the reports to have existed. No such jurisdiction was ever assumed.

A conviction in one county might be pleaded in bar to a prosecution for the same offence in another county, in the same kingdom or state; but it would be otherwise in distinct and independent states.

Did Tuttle acquire a new felonious possession when, with Symonds, he retook the goods at Harvard? If a thief, having delivered

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possession of the goods stolen to an accomplice, afterwards retakes them, he has committed but one felony. So, if he mistakes another for his accomplice. If both these transactions had taken place in the same county, would there have been any pretence for saying that Tuttle had committed two felonies? The principle of law, respecting goods stolen in one county and carried into another, relates merely to the jurisdiction of different courts, acting under the same authority, and governed by the same rules.

That a continued possession of stolen goods is a continued taking is nothing more than the language of reporters. It is a fiction of law, and ought not to be carried farther than the purposes of substantial justice require and will support it.

The defendant ought to have been proved to have known that the goods had been stolen in violation of the laws of this state. He might otherwise well suppose he was committing no offence himself against those laws. Though the transfer from Dow to Symonds may have been void as between the parties, yet, if the goods had afterwards been stolen from Symonds, would it be competent for the thief, in that case, to allege this, and avail himself of it? If not, will not the Court allow the present defendant to set up that sale in his vindication? The counsel for the prosecution ought not to be permitted to go into the consideration of the validity of that sale, in order to convict the defendant, who was not knowing to the in validity of the transaction.

PARKER, J. I hold myself bound by the authority of Cullen's case, and that of Paul Lord, unless I were convinced that those decisions were against law. If solemn and repeated determinations of this Court are to be disregarded, I know not how we are to govern ourselves.

But upon principle, independently of these cases, it appears to me that the common-law doctrine respecting counties may well be extended, by analogy, to the case of states, united, as these are, under one general government.

In this case, however, I see nothing to induce the Court to say that the second taking by Tuttle, at Harvard, was not felonious.

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The point on which the court refused cognizance of the pirates' case, mentioned in 3 Inst., was that, the Admiralty having jurisdiction of the offence, there was no danger that the criminals would escape unpunished. [Note p20-a] In the case at bar, on the contrary, if the defendant is discharged from this indictment, he can be convicted nowhere.

All that can be inferred from the statute of 13 G. 3 is, that there were doubts, or different opinions, on the question. If there had been a decision against the jurisdiction, it would not have been said that doubts existed, but that the law needed alteration.

Different opinions may have been held also in this country, but the two cases which have been cited (and several others of like kind are in the recollection of some of the Court) ought to settle the point.

I am satisfied with the verdict, and against granting a new trial.

THATCHER, J. I concur in my brother's opinion, and for the same reasons. It appears to me, that these goods were taken by Tuttle, animo furandi, at Harvard, and that it is immaterial how they came there; that Tuttle brought them, thus stolen, to Boston, where the present defendant received them, knowing, beyond all doubt, that they had been stolen. We have, then, under the impression that the facts make on my mind, no occasion to call in the cases of Lord and Cullen to support this verdict. I am against a new trial.

SEDGWICK, J. In this case, the defendant is convicted on an indictment charging him with receiving the goods enumerated in it, which were stolen by Amos Tuttle from Moses Dow, Jun., knowing them to have been so stolen. On the trial it appeared, by the evidence, that the goods were stolen by Tuttle in the state of New Hampshire, by him brought into this state, at first concealed, afterwards deposited in the hands of an innocent person in this state, again received by Tuttle, and by him finally delivered to the defendant, who, at the time he received the goods, was acquainted with all these circumstances. The defendant has been convicted on satisfactory evidence; but it is

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said by his counsel, “that, as the original theft was committed in another independent state, the principal offender, Tuttle, could not be convicted here, although he brought the goods into this county; that the goods have, in fact, never been stolen here; and that, therefore, the defendant ought not to be punished as a receiver of stolen goods.” And it is undoubtedly true that although, by our statute, the conviction of the principal thief is not necessary to the conviction of the receiver, yet, unless there has been a theft within the state, there can be no receiver of the stolen goods, and the defendant ought not to have been convicted.

At the trial I inclined to the opinion, and my brethren who sat with me concurred in it, that, whatever might be determined as to the principal question in this case, the goods having got into the hands of an innocent third person, the taking them a second time, by Tuttle, while the property of Dow continued, might properly be considered as a new theft; and in that case they were, even admitting the objection of the defendant's counsel, stolen within this state. But I do not choose that my opinion should rest upon that circumstance, as I am satisfied that, independently of it, the conviction is right.

The only case relied upon, as directly in point, is that of the pirates, in 3 Inst. 113. “Butler, and other pirates, in summer vacation, robbed divers of his majesty's subjects upon the coast of Norfolk, upon the high seas, and brought divers of the goods taken into the county of Norfolk, and there were apprehended with the goods; the question moved to Wray, Chief Justice, and Justice Peryam, justices of assize in Norfolk, was, whether they might be indicted of felony in Norfolk, as, if one steal goods in one county and carry them into another, he may be indicted in either county;--and it was resolved by them that they could not be indicted for felony in Norfolk, because the original taking was no felony whereof the common law took conusance, because it was done upon the sea, out of the reach of the common law, and therefore not like the case where one stealeth in one county and carrieth the goods into another, for the original act was felony, whereof the common law took conusance.” The only reason

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which appears to have influenced the court was, that the jurisdiction of another court of the same government had attached, previous to any crime having been committed of which that court had jurisdiction. But it does not determine that, if goods had been stolen in another country and brought into England, the fraudulent possession there would not have been considered such a taking as to have constituted it a theft.

But it is said that we have no means of determining what acts will constitute a theft in New Hampshire. To this I answer, that I know not why we might not inquire, if it was necessary, what in this respect, is the law in that state. But it is not necessary. The crime of theft is local, and can be tried nowhere but in the county where it is committed; and, therefore, there must have been a theft by Tuttle, as charged in the indictment, or the defendant is not guilty. We know, however, that goods taken as these were still continue the property of the owner. When so taken in New Hampshire, and brought into this state, those goods were still the property of Dow. Not only the property, but the possession also, in legal contemplation, continued in him; and every moment's continuance of the trespass is as much a wrong as the first taking, and may as well come under the word cepit. [Note 6] And hence it follows, that Tuttle did take, wherever he had, the goods. It is, however, said that, although Tuttle might be punished in this state, he may still be punished in New Hampshire. And wherefore should he not? For myself, I feel no such tenderness for thieves, as to desire that they should not be punished wherever guilty. If they offend against the laws of two states, I am willing they should be punished in both.

The mischiefs which would result from the establishment of a principle whereby a commerce in stolen goods might be carried on with impunity, are incalculable. A depot of plunder might be here established, and gangs of desperate villains employed in the neighboring states for its support; and all the remedy that could be afforded to the injured would be by actions, which, in nine instances out of ten, might fail, for

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want of identifying the property; for the owners could not be witnesses in their own behalf. Should goods be stolen by one of a gang in New Hampshire, and sent to his partner here, by an innocent carrier, although the receiver might not be punishable as accessory, for receiving stolen goods knowingly, yet I have no doubt but that he might be amenable to justice as a principal offender.

But, whatever I might think upon this question were it res integra, I now feel myself bound by authority. The case in York was many years ago decided, and, as we are informed by the Chief Justice, on solemn argument. In the case in Bristol, although it was in a trial to the jury, the law was taken to be established. I myself remember many cases where similar convictions have taken place, and no question made but that they were right. It is now, therefore, much too late to call in question the principle. If the legislature perceive any mischiefs from the establishment of it, it is in their power, and in their power only, to correct it.

DANA, C. J. We all concur in opinion upon this point. In the case of Paul Lord, [Note 7] which has been referred to, this objection was taken, and fully argued, on the trial. The counsel for the defendant proposed to take a special verdict; but as the facts were all before the Court, and they agreed in opinion upon the law, the jury were instructed that the indictment appeared to the Court to be well maintained by the evidence, if they found the facts true. They accordingly found a general verdict of guilty, and the point was not afterwards stirred. I recollect also another case, so long ago as when the late Judge Trowbridge was attorney-general. A man had been from this province into Rhode Island to purchase sheep. On his way home, while yet in their government, some other sheep joined his flock, and he drove them all into the county of Bristol, where he was indicted and convicted. Great mischiefs would follow from a contrary determination, which would also overthrow three solemn decisions of this Court, which are now remembered; and I believe, if our records were searched, many more

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would be discovered. There have been many instances, I am satisfied, of persons who have stolen horses in the neighboring states, and, having been pursued and found in possession of them in this state, have been here indicted and convicted. The principle appears to me well established that, the original taking being felonious, every act of possession continued under it, by the thief, is a felonious taking; and wherever he carries the articles stolen, he may there be indicted, convicted, and punished, for the felony.

The offence charged on the defendant is the receiving the goods in Boston, knowing them to have been stolen. If the principal could be tried and convicted in this county, the accessory may be tried and convicted here also.

The same reason which authorizes a conviction, in the case of stealing goods in one county and bringing them into another, applies, in my mind, to the case of stealing in one state and bringing them into another,-- viz., that every moment's felonious possession is, in contemplation of the law, a new taking, stealing, and carrying away.

Having respect, then, to principles, as well as to cases solemnly decided, I do not see sufficient ground for granting a new trial. [Note p24-a]

New trial refused.

Afterwards, the Attorney-General moved the Court for sentence against Andrews, and a question was made by his counsel, whether the award of treble of the value of the goods stolen should make a part of the sentence of the Court upon this conviction.

By statute passed March 15, 1785, entitled “An Act for the Punishing and Preventing of Larcenies,” [Note 8] it is enacted “ that if any person shall be convicted of the crime of theft, besides the punishment of fine and whipping, as aforesaid, he shall be sentenced to forfeit treble the value of the goods or other articles stolen, to the owner thereof; any of the articles stolen being returned, to be accounted part, according to their value. And if any such offender be unable to make restitution, or pay such treble damages, the justices of the Court before whom such conviction

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is, may further sentence him to make satisfaction to the person from whom such articles were stolen, by service, and he shall be, and hereby is, empowered to dispose of the said convict in service, to any person whomsoever, for such term of time as shall be assigned by the same justices; or they may sentence the said convict to hard labor for a term of time not exceeding three years, to take place if the owner of the articles stolen doth not sell such convict in thirty days after a sentence therefor.”

By sect. 9th of the same statute, “ It is further enacted, that whosoever shall comfort, aid, &c., or procure any person to commit any of the offences hereinbefore described, or that shall knowingly buy or receive any such stolen goods, &c., shall be considered as accessory to the principal offender, and shall suffer like punishment as he might have received on a first conviction; and in case the principal offender be not known or prosecuted, any person, committing any of the said crimes, whereby he becomes an accessory, may be prosecuted for a misdemeanor, and on conviction shall suffer like punishment as the principal offender might have suffered on a first conviction.”

The counsel for the prisoner contended, that the sentence in this case ought not to include the treble damages, as these are awarded to the party injured, as a compensation for his loss, and as an inducement to activity in prosecuting, and make no part of the punishment, which means personal suffering, as whipping, imprisonment, &c., and is rather to be considered as a satisfaction to the sovereign for the offence. This is “ beside” the punishment, something added to it.

The 5th section of this statute directs that any person apprehended on a charge of theft, and admitted to bail, shall, besides recognizing to the commonwealth, also recognize with sureties to the party injured, for treble the value of the goods stolen. But there is no such provision on the arrest of accessories or receivers, which there would have been, had the legislature intended they should be held to pay it.

If principal and accessory are both to pay, the party recovers six fold, instead of treble, his loss.

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By the 10th section of the statute, no person under sentence for theft shall be held in prison for the treble value more than thirty days, unless the party injured will become bound to pay the expense of his support. But there is no such provision for an accessory or receiver, who, therefore, if liable to this sentence, must remain a prisoner for life, if the party whom he has injured does not incline to discharge him. It is observable that this section follows immediately after that which prescribes the punishment of accessories; and the principals only being mentioned in it, the inference is strong that the legislature did not intend to include the accessory in the provision for disposing in service, and so not in the payment of the treble damages.

If this is to be a part of the sentence, the receiver must be ordered to pay treble the value of the goods stolen, not of those received; though he may perhaps not have received a thousandth part in value of the goods stolen.

Suppose the recognizance taken for these treble damages to be forfeited, and judgment recovered and satisfied; or suppose them to have been voluntarily paid; yet, if this is considered as part of the punishment inflicted for the offence, they must still make part of the sentence, the party will receive six-fold, instead of treble, the value of the goods, and the defendant will be without remedy.

Writs of scire facias, at the suit of the party injured, have been brought to recover these damages, and an action was brought and maintained against the sheriff of York for the escape of one held in prison for the treble damages only. These facts show that the right to these damages is vested in the party, and is no part of the punishment inflicted at the suit of the government.

PARKER, J. Can the executive, by granting a pardon, release these damages?

Counsel for the prisoner. We say not, and that the legislature itself cannot divest the party of his right to them, which is in its nature precisely like a judgment obtained by a party in a civil suit. They may be assigned or released by the party to whom they are awarded. If a pardon operates a release

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of them, then here is a case where, contrary to our bill of rights, a subject may be deprived of his property without the judgment of his peers, or the law of the land.

For the government, it was argued that every part of the sentence is a part of the punishment; and the Court are expressly enjoined to inflict the same punishment on the accessory as on the principal upon the first conviction.

The word “ beside” is used here to connect the corporal punishment before mentioned with the payment of treble damages, as part of the same sentence; and not to separate and distinguish them from each other.

The statute passed in 1692, 4 W. & M. c. 6, has the same expressions in an inverted order. “ Every such offender shall forfeit treble the value, &c., and be further punished by fine or whipping.”

By another statute, passed in 1736, 10 G. 2, “ Any person convicted of a second theft above forty shillings, shall, besides paying treble the value, &c., be set on the gallows, and be severely whipped.”

The statute of 1785 is a revision of these laws, and is new only in its provision for the conviction of the accessory, as for a misdemeanor, before or without the prosecution of the principal. This act was drawn up by one of the then justices of this Court, and has uniformly received the construction we contend for, from this Court, and from all the courts of inferior criminal jurisdiction in the state. The case of one Fuller, in Bristol, and the case of Plumbach, in this county, are particularly recollected; in both of which, the defendants were convicted as receivers, and sentenced to pay the treble damages.

If the convict is not disposed of by the party injured, within thirty days, the Court may sentence him to be confined to hard labor, in lieu of the service. Will it be said that this is no part of the punishment?

As to the injured party's receiving six-fold damages, the same thing happens where several persons are convicted of the same theft. Each of them is severally sentenced to pay the whole

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treble value. But in case it has been once paid by the principal, it would not be awarded against the accessory.

The provision of law, for discharging the principal after the expiration of thirty days, has always been extended in practice to the accessory.

The writs of scire facias, mentioned by the defendant's counsel, must have issued on the recognizances, and not on the sentence, as by that the convict must have been in prison until payment, or until he was otherwise delivered by law. The party injured has, without doubt, such an interest in the money awarded him, as may well entitle him to an action against the sheriff for an escape; but this does not show it to be no part of the punishment inflicted for the offence.

Receivers of stolen goods are frequently men of more ability for payment than thieves, which makes it important that the part of the sentence we contend for should be extended to them.

That a pardon operates as a release of the treble damages, the Solicitor-General mentioned the case of one Rice, who was convicted, in this Court, of stealing from the Nantucket Bank. He was pardoned, and the Court held, after argument, that the treble damages, being part of the punishment, were remitted by the pardon.

For the prisoner, in reply. The Court will not hold themselves bound by any decisions which may have been made without argument, if those decisions are now shown to be wrong, although they may have been acquiesced in, by defendants unassisted by counsel, and followed for twenty years. In the case of the Bishop of London vs. Ffytche, in the House of Lords, May, 1783, respecting simoniacal bonds, the House of Lords overruled the decisions of the Courts of King's Bench and Common Pleas, which had uniformly prevailed for sixty years.

At common law, the party from whom goods were stolen could obtain no satisfaction for the injury he had sustained but by appeal, over which, it is well known, the king had no power. The statute 21 Hen. 8, c. 11, first gave the remedy on an indictment by enacting that prosecutors of indictments for goods stolen shall have their writs of restitution, in the same

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manner as on appeal--which shows that this was considered as no part of the punishment for the offence inflicted at the suit of the king.

The statute of Mass. 10 W. 3, c. 6, which was the first law made in this government against receivers of stolen goods, and which continued in force and operation until the act of March, 1785, orders restitution of the property stolen, and a forfeiture to the party injured of an equal amount in money; and this complied with, the offender was discharged. If, indeed, he failed to do this, he was liable to be whipped. But this was intended merely as an inducement to the defendant to make the satisfaction, and thus operated only for the benefit of the prosecutor.

The opinion of the Court was afterwards delivered by

DANA, C. J. The question to be determined is, whether the accessory to a theft, convicted as a receiver of goods stolen, can be sentenced to pay treble damages to the owner of the goods.

By comparing the ninth with the first and third sections of the statute of March 15, 1785, it appears that the Court, at their discretion, may either sentence the principal thief to a fine or whipping; but, in either case, cannot dispense with sentencing him to pay the treble damages to the owner of the article stolen. If, indeed he be unable to pay the treble damages, it is at their discretion whether they will sentence him to make satisfaction therefor by service, or to hard labor. If by service, he may then be sold by the owner, and shall be kept in prison thirty days only for that purpose, unless, &c. If to hard labor, he cannot be sold. The accessory shall suffer like punishment, such punishment as the principal offender might have suffered on a first conviction.

But it has been contended that the statute evidently distinguishes between punishment and sentence; that the fine, or whipping, are to be considered as constituting what the law contemplates as punishment, and that the treble damages are only a forfeiture to the owner; because the statute says, beside the punishment of fine and whipping, the convict shall be sentenced to forfeit or pay treble damages to the owner, and does not say

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further punished by paying treble damages. This seems a mere play upon words. If ever there was a case to which the maxim of law is applicable, Qui hæret in litera, hæret in cortice, this seems such a one.

When I am able to conceive that sentencing a criminal to pay treble damages, and if he does not pay them, that he shall be liable to be sold in service, and to that end shall be held in prison thirty days, and, if not sold, cannot even then be discharged, if the party injured will give security to the keeper of the prison to pay and satisfy his charge and expense for supporting the convict, for the time past and future, and when the Court might, instead thereof, sentence him directly to hard labor, [Note 9] - when, I say, I am able to conceive that this cannot be called a punishment, or that each and every part of a sentence passed upon a convict is not a punishment inflicted upon him for his crime, - I may admit there is some force in the distinction which has been set up in this case.

But it has been further urged that the provision of the statute for liberating the convict, if not sold at the expiration of thirty days, is expressly confined to the principal thief himself by the words “that no person convicted of theft shall be held in prison on account of the treble value,” &c., and that if the accessory should be alike sentenced to pay treble damages, he can have no relief at the expiration of the thirty days, if not then sold, but may be held in prison for an indefinite term, even through life.

This argument struck my mind at first with some force, but on further deliberation I think there is very little in it; because, although the accessory is not expressly named in this clause, and there is not a similar one respecting him, yet, as the statute expressly declares he ‘shall suffer the like punishment as the principal on his first conviction,” so he cannot be made to suffer any other or greater punishment, and therefore he shall be entitled to the same relief, and to every benefit or advantage, which the statute gives to the principal, or thief, without being specially provided for, as the thief is, by the statute. This appears

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to me so rational and necessary a construction of the statute as entirely to remove the objection.

But it has been further objected that, as the principal must be sentenced to pay treble the value of all the goods stolen, if the accessory is, in all respects, to receive such or the like sentence or punishment as the principal, he must be liable to pay the value of all the goods stolen, though he may have received but a very small portion of them.

As, in the present case, no such difficulty arises, because the defendant stands convicted of receiving all the stolen goods, we shall not now give an opinion touching the case supposed, but wait till such a one comes before us for decision.

I see, then, no difficulty remaining in the case; and am therefore of opinion that the Court cannot dispense with sentencing the accessory to pay treble damages any more than they could the principal, were he convicted and to be sentenced at this time. If this part of the sentence were to be omitted, then, with no propriety could he be said to suffer the like or such punishment as the principal might have suffered,--that is, all the same pains, penalties, and forfeitures,--and he would escape that grievous one of being sold in servitude.

This opinion has been submitted to each member of the Court, and they unanimously agree in the opinion and the reasons of it. It is hoped, therefore, that the point will hereafter be at rest.

Vide statute 10 G. 1, c. 1, entitled, “An Act in addition to an Act against Receiving Stolen Goods,” &c.

The preamble states that the penalty provided in the original act, [Note 10] viz., paying double the value, or being whipped not exceeding twenty stripes, has not only proved ineffectual to deter persons from the crime, but the party injured is often defeated of his just satisfaction by the offender's avoiding to make satisfaction, by suffering corporal punishment.

It is therefore enacted that all persons offending against the said law, and thereof convicted, that shall not make restitution as awarded, shall be ordered by the justices or court to make satisfaction by service, and be disposed of in like manner as is provided in case of theft, and be further punished by whipping, not exceeding twenty stripes, at the discretion of the court.


[Note 1] 3 Inst. 113.

[Note 2] 1 Hawk. P. C. 217, c. 33, § 53.

[Note 3] 1 Mass. 116

[Note 4] Hawk. P. C. 217 c.33, § 52

[Note 5] 1 Hawk. P. C. 209, c. 33, § 5-13.

[Note p20-a] Sed vide Nightingale vs. Adams, 1 Show. 91.-- Rex vs. Anderson, 2 Russell sn C. 176.

[Note 6] 1 Hawk. P. C. c. 33, § 9.

[Note 7] York, June term, 1792.

[Note p24-a] At the common law, a thief, who had stolen goods in Scotland or Ireland, could not be indicted in England, where he was taken with the goods.--2 Russell on Crimes, p. 176.-- Rex vs. Anderson and Others, Carlisle Sum. Ass., 1763, and before the judges, Nov. 1763.--2 East, P. C. c. 16, § 156, p. 772.--See Nightingale vs. Adams, 1 Show. 91.--The law was altered by the act 13 Geo. 3, c. 31, § 4.

[Note 8] Sect. 3.

[Note 9] Vide sect. 10.

[Note 10] 10 Will. 3, c. 6.