COMMONWEALTH vs. RUSSELL F. WHITE.

CUTTER, J. White's indictment charged that on August 23, 1969, he "at Lexington, in the County of Middlesex [Massachusetts] . . . did steal one motor vehicle of the property of Luc Savaria." White moved to dismiss the indictment on the ground that the Superior Court lacked jurisdiction. The motion was allowed. The Commonwealth appealed under G. L. c. 278, Section 28E, inserted by St. 1967, c. 898, Section 1. The parties stipulated, "solely for the

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purposes of . . . [the] motion to dismiss," that (1) "the motor vehicle the subject of the larceny alleged . . . was owned by" a resident of Montreal, Canada; (2) the "asportation of the . . . vehicle . . . occurred in Montreal . . . and not in Middlesex County"; and (3) there has been no other asportation than that which occurred in Canada. The Commonwealth asserts in its brief, and the defendant does not seem to dispute, [Note 1] that the motor vehicle, allegedly stolen, was found in Massachusetts.

1. The trial judge obviously dismissed the indictment on the authority of the 1855 decision in Commonwealth v. Uprichard, 3 Gray 434. It had previously been stated in Commonwealth v. Andrews, 2 Mass. 14, 22-24, that possession in Massachusetts by a thief of goods stolen by him in New Hampshire and transported to Massachusetts constituted larceny in this Commonwealth. See Perkins, Criminal Law, 220-221. [Note 2] See also Commonwealth v. Cullins, 1 Mass. 116, 117; Commonwealth v. Rand, 7 Met. 475-477; Commonwealth v. Holder, 9 Gray 7; Commonwealth v. White, 123 Mass. 430, 433; Commonwealth v. Parker, 165 Mass. 526, 538-540; Mayo v. State, 258 Atl. 2d (Maine) 269, 270. In the Uprichard case, Chief Justice Shaw, speaking for the court, declined (at p. 439) to extend to a theft, originally taking place in the territory of another nation, the principle that a thief who has brought to Massachusetts goods stolen in another State is guilty of larceny here because of the continuing asportation.

When the Uprichard case was decided in 1855, there was little authority concerning the prosecution, in a State of the Union, of a thief who had stolen property in another

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country and brought the property into the forum State. In the Uprichard case, this court did not follow State v. Bartlett, 11 Vt. 650, 653-655, which had held that a thief, who had stolen oxen in Canada and taken them to Vermont, could be prosecuted and convicted of larceny in Vermont. The weight of authority, however, now supports the view of the Bartlett case and not that of the Uprichard case. Most decisions, in some instances on the basis of statutory language, have drawn no distinction between instances (a) where the theft originally took place in another State, and (b) where it took place within another nation's territory. [Note 3] See Anderson, Wharton's Criminal Law & Procedure (1957 ed.) Sections 485, 486, 576; annotation, 156 A. L. R. 862, 877, et seq. [Note 4] See also Garcia v. State, 151 Tex. Cr. App. 272, 273-274. For cases dealing with thefts in other States, see People v. Case, 49 Cal. 2d 24, 27-28; State v. Pambianchi, 139 Conn. 543, 546-547; State v. Palkimas, 153 Conn. 555, 561-562; Newlon v. Bennett, 253 Iowa, 555, 557; State v. Vareen, 223 S. C. 34, 35; State v. Rutledge, 232 S. C. 223, 227-228; Lovelace v. Commonwealth, 205 Va. 541, 544-546. Cf. La Vaul v. State, 40 Ala. 44, 46-48; Simmons v. Commonwealth, 5 Binney (Pa.) 617; Stanley v. State, 24 Ohio St. 166, 171-174.

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2. The distinction drawn in the Uprichard case ( 3 Gray 434) between bringing into Massachusetts (a) goods stolen in another nation's territory and (b) goods stolen in another State, is illogical and cannot stand. First, the court's decision in that case appears to have been largely based (pp. 440-441) on its reluctance to look to the law in force in Nova Scotia to determine in Massachusetts whether the original taking of goods in Nova Scotia constituted larceny under its law. The basis for the court's reluctance, if indeed it ever was of importance, [Note 5] has now been removed by G. L. (Ter. Ed.) c. 233, Section 70, which provides that the courts of the Commonwealth "shall take judicial notice of the law . . . of any state . . . or of a foreign country whenever the same shall be material." See Dc Gategno v. De Gategno, 336 Mass. 426, 431. Cf. Tsacoyeanes v. Canadian Pac. Ry. 339 Mass. 726, 727-728. Second, the rule laid down in the Uprichard case (even as explained in Commonwealth v. Macloon, 101 Mass. 1, 5-6) is inconsistent with the necessities of law enforcement today, when an automobile stolen in Montreal can easily be moved by the thief to Boston the same day. The decision is an unnecessary impediment to effective administration of the criminal law. [Note 6]

So far as the Uprichard case draws a distinction between goods stolen outside the United States and those stolen in another State, it no longer represents the law and will not be followed.

3. The defendant suggests in his brief, as a basis for supporting the Uprichard decision, that prosecution and conviction in Massachusetts on the present indictment would not bar a later indictment in Canada for the same alleged

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theft. The present record presents no question of double jeopardy and the point is not sufficiently argued to require us to consider it. S.J.C. Rule 1:13, 351 Mass. 738 . Lolos v. Berlin, 338 Mass. 10, 13-14. Nevertheless, we point out that, as early as the Andrews case, 2 Mass. 14, 22, supra, Mr. Justice Sedgwick disposed of this argument summarily. [Note 7] There is no suggestion that White has already been tried for larceny in the Province of Quebec. Thus Massachusetts, in any event, is not precluded from trying him. It apparently has taken jurisdiction first and may now proceed to complete the prosecution. See Commonwealth v. Fuller, 8 Met. 313, 318. We assume, without deciding, that the alleged larceny in Canada and the continuing asportation in Massachusetts are so far separate offences as to permit two prosecutions. See Bartkus v. Illinois, 359 U.S. 121, 136-139; People ex rel. Heflin v. Silberglitt, 2 App. Div. 2d (N. Y.) 767; People v. Lo Cicero, 17 App. Div. 2d (N. Y.) 31, 32-35. See also Campbell v. State, 109 Ill. 565, 571-576; State v. Goldfarb, 97 N. J. L. 489, 491-492; State v. Johnson, 212 N. C. 566; Am. Law Inst., Model Penal Code (Tent. draft no. 5, 1956) Sections 1.09-1.12, and (proposed official draft. 1962) Sections 1.07-1.11; Anderson, Wharton's Criminal Law & Procedure, Section 485, p. 146; notes 59 Harv. L. Rev. 1161, 80 Harv. L. Rev. 1538. Cf. North Carolina v. Pearce, 395 U.S. 711, 717-726; Benton v. Maryland, 395 U.S. 784, 793-798; State v. Shimman, 122 Ohio St. 522, 526-528. We, however, need not determine whether this is the case, in the absence of a prior conviction or acquittal elsewhere based upon some portion of the same alleged sequence of events.

Order dismissing indictment reversed.