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Vol. II.)

STANLEY v. THE STATE

[No. 1.

What we deny is, that a mere change of place by the thief, while he continues in the uninterrupted and exclusive possession of the stolen proporty, constitutes a new " taking ” of the property, either as matter of fact or of law.

Larceny, under the statute of this state, is the same as at common law, and may be defined to be the felonious taking and carrying away of the personal property of another. But no offence against this statute is complete until every act which constitutes an essential element in the crime has been committed within the limits of this state. The act of “ taking is an essential element in the crime, and defines the act by which the possession of the property is changed from the owner to the thief. But the act of “ taking” is not repeated, after the change of possession is once complete, and while the possession of the thief continues to be exclusive and uninterrupted. Hence, a bailee or finder of goods, who obtains complete possession without any fraudulent intent, cannot be convicted of Tarceny by reason of any subsequent appropriation of them.

We fully recognize the cominon law practice, that when property is stolen in one county, and the thief is afterward found in another county with the stolen property in his possession, he may be indicted and convicted in either county, but not in both. This practice obtained, notwithstanding the general rule that every prosecution for a criminal cause must be in the county where the crime was committed. The reason for the above exception to the general rule is not certainly known, nor is it important in this case that it should be known, as it relates to the matter of venue only, and does not affect the substance of the offence. We are entirely satisfied, however, that the right to prosecute the thief in any county wherein he was found in possession of the stolen property was not asserted by the crown because of the fact that a new and distinct larceny of the goods was committed whenever and wherever the thief might pass from one county into another. His exemption from more than one conviction and punishment makes this proposition clear enough. The common law provided that no person should be twice vexed for the same cause. through the operation of this principle that the thief, who stole property in one county and was afterward found with the fruits of his crime in another, could not be tried and convicted in each county. He was guilty of one offence only, and that offence was complete in the county where the property was first “ taken ” by the thief, and removed from the place in which the owner had it in possession.

When goods piratically seized upon the high seas were afterward carried by the thief into a county of England, the common law judges refused to take cognizance of the larceny, “ because the original act namely, the taking of them – was not any offence whereof the common law taketh knowledge; and by consequence, the bringing them into a county could not make the same a felony punishable by our law.” 13 Coke, 53; 3 Inst. 113; 1 Hawk. c. 19, sec. 52.

The prisoner was charged with larceny at Dorsetshire, where he had possession of the stolen goods. The goods had been stolen by him in the island of Jersey, and afterward he brought them to Dorsetshire. The prisoner was convicted. All the judges (except Raymond, C. B., and Taunton, J., who did not sit) agreed that the conviction was wrong. Rex v. Prowes, 1 Moody C. C. 349.

It was

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Vol. II.)

STANLEY V. THE STATE.

[No. 1.

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Property was stolen by the prisoner in France, and was transported to London, where it was found in his possession. Parke, B., directed the jury to acquit the prisoner on the ground of the want of jurisdiction, which was done. Regina v. Madge, 9 Car. & P. 29.

A similar decision was made in a case where the property was stolen in Scotland and afterward carried by the thief into England. 2 East P. C. 772, c. 16, sec. 156.

This rule of the common law was afterward superseded, in respect to the United Kingdom, by the statutes of 13 Geo. 3, c. 21, sec. 4, and 7 & 8 Geo. 4, c. 29, sec. 76, whereby prosecutions were authorized in any county in which the thief was found in possession of property stolen by him in any part of the United Kingdom.

In Commonwealth v. Uprichard, 3 Gray, 434, the property had been stolen in the Province of Nova Scotia, and thence carried by the thief into Massachusetts. The defendant was convicted of larceny charged to have been committed in the latter state. This conviction was set aside by a unanimous court, although two decisions had been made by the same court affirming convictions, where the property had been stolen in a sister state, and afterward brought by the thief into that commonwealth. Without overruling the older cases, Chief Justice Shaw, in delivering the opinion of the court, distinguished between the two classes of cases.

The following cases are in point, that a state, into which stolen goods are carried by a thief from a sister state has no jurisdiction to convict for the larceny of the goods, and a fortiori when the goods were stolen in a foreign country : In New York : People v. Gardner, 2 Johns. 477; People v. Schenk, 2 Johns. 479. The rule was afterward changed in that state by statute. New Jersey: The State v. Le Blanch, 2 Vroom, 82. Pennsylvania: Simmons v. Commonwealth, 5 Binn. 617. North Carolina : The State v. Brown, 1 Hayw. 100. Tennessee : Simpson v. The State, 4 Humph. 456. Indiana : Beall v. The State, 15 Ind. 378. Louisiana : The State v. Reonnals, 14 L. An. 278.

There are two cases sustaining convictions for larceny in the states, where the property had been stolen in the British Provinces : The State v. Bartlett, ii Vermont, 650, and The State v. Underwood, 49 Maine, 181. In Bartlett's case, the principle is doubted, but the practice adopted in cases where the property was stolen in a sister state was followed, and the application of the principle thereby extended. Underwood's case was decided by a majority of the judges.

After reviewing the cases, we think the weight of authority is against the conviction and judgment below. And in the light of principle, we have no hesitancy in holding that the court below had no jurisdiction over the offence committed by the prisoner.

The judgment below is wrong, unless every act of the defendant, which was necessary to complete the offence, was committed within the State of Ohio and in violation of the laws thereof. This proposition is not disputed. It is conceded by the prosecution that the taking, as well as the removal of the goods animo furandi, must have occurred within the limits of Ohio. It is also conceded that the first taking, as well as the first removal of the goods alleged in this case to have been stolen, was at a place beyond the limits of the state, and within the jurisdiction of a forVOL. II.

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Vol. II.)

STANLEY v. THE STATE.

(No. 1.

eign and independent sovereignty. Now, the doctrine of all the cases is that the original “taking” and the original asportation of the goods by the prisoner must have been under such circumstances as constituted a larceny. If the possession of the goods by the defendant before they were brought into this state was a lawful possession, there would be no pretence that the conviction was proper. The same, if his possession was merely tortious. The theory of the law, upon which the propriety of the conviction is claimed, is based on the assumption that the property was stolen in Canada by the prisoner.

By what rule shall it be determined whether the acts of the prisoner, whereby he acquired the possession of the goods in Canada, constituted the crime of larceny? By the laws of this state ? Certainly not. The criminal laws of this state have no extra-territorial operation. If the acts of the prisoner, whereby he came in possession of the property described in the indictment, were not inhibited by the laws of Canada, it is perfectly clear that he was not guilty of larceny there. It matters not that they were such as would have constituted larceny if the transaction had taken place in this state.

Shall the question whether or not the "taking ” of the property by the prisoner was a crime in Canada be determined by the laws of that country? If this be granted, then an act, which was an essential element in the combination of facts of which Stanley was found guilty, was in violation of the laws of Canada, but not of this state; and it was because the laws of Canada were violated that the prisoner was convicted. If the laws of that country had been different, though the conduct of the prisoner had been the same, he could not have been convicted. I can see no way to escape this conclusion, and if it be correct, it follows that the acts of the prisoner in a foreign country, as well as his acts in this state, were essential elements in his offence; therefore, no complete offence was committed in this state against the laws thereof.

I have no doubt the legislature might make it a crime for a thief to bring into this state property stolen by bim in a foreign country. And in order to convict of such crime, it would be necessary to prove the existence of foreign laws against larceny. The existence of such foreign laws would be an ingredient in the statutory offence. But that offence would not be larceny at common law, for the reason that larceny at common law contains no such element. It consists in taking and carrying away the goods of another person in violation of the rules of the common law, without reference to any other law or the laws of any other country.

It may be assumed that the laws of meum et tuum prevail in every country, whether civilized or savage.

But this state has no concern in them further than to discharge such duties as are imposed upon it by the laws of nations, or through its connection with the general government, by treaty stipulations.

Our civil courts are open for the reclamation of property which may have been brought within our jurisdiction, in violation of the rights of the owner ; but our criminal courts have no jurisdiction over offences committed against the sovereignty of foreign and independent states.

Judgment reversed, and cause remanded. Day, C. J., WELCH, STONE, and WHITE, JJ., concurring.

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Vol. II.)

HOME INSURANCE Co. v. MORSE.

(No. 1.

SUPREME COURT OF THE UNITED STATES.

[DECEMBER, 1874.]

CONSTITUTIONAL LAW. AGREEMENT NOT TO REMOVE A CAUSE TO

U. S. COURT, BASED UPON STATE LAW, VOID AS AN INFRACTION OF THE FEDERAL CONSTITUTION.

HOME INSURANCE CO. v. MORSE.

A statute of the State of Wisconsin provided that it should be unlawful for any insur

ance company, organized under the laws of another state, to do business in the State of Wisconsin, except, inter alia, such company stipulated that any suit against it brought in a court of said state should not be removed to a court of the United States. In pursuance of the terms of the statute plaintiffs in error made the prescribed stipulation, but the issue having been raised, it was held that the stipulation was void and that it derived no validity from the statute, both stipulation and statute being a violation of the Constitution of the United States and the laws passed in pursuance thereof.

THE opinion of the court was delivered by

Mr. Justice HUNT. This action was commenced in the circuit court of Winnebago County, Wisconsin, to recover the amount alleged to be due upon a policy of insurance issued by the plaintiffs in error to the defendants in error upon the steamboat Diamond. The Home Ins. Co. is a corporation organized under the laws of New York, and having its office and principal place of business in the city of New York.

The company entered its appearance in the Winnebago County suit, and filed its petition to remove the cause to the United States circuit court for the Eastern District of Wisconsin. The petition was in the form required by the 12th section of the act of 1789, and was accompanied by a bond with sufficient bail, as required by that act.

The circuit court of Winnebago County refused to grant the prayer for removal, but proceeded to the trial of the cause. A verdict was rendered against the company, judgment entered thereon, and upon an appeal to the supreme court of Wisconsin, the same was affirmed. The insurance company now bring a writ of error to this court.

The case of The Montello was argued at the same time with the present; both cases, as it was understood, involving the question whether

; the Fox River was a navigable water of the United States. The decision of that question is not essential to the judgment to be rendered in the present case.

The refusal of the state court of Wisconsin to allow the removal of the case into the United States circuit court of Wisconsin, and its justification under the agreement of the company and the statute of Wisconsin, form the subject of consideration in the present suit.

The statute of Wisconsin in question was passed in the year 1870, and therein it is declared, that “ It shall not be lawful for any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other state of the United States, or of any foreign gov

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Vol. II.]

HOME INSURANCE Co. v. MORSE.

(No. 1.

ernment, for any of the purposes specified in this act, directly or indirectly to take risks or transact any business of insurance in this state, unless possessed of the amount of actual capital required of similar corporations formed under the provisions of this act; and any such company desiring to transact any such business as aforesaid by any agent or agents in this state shall first appoint an attorney in this state, on whom process of law can be served, containing an agreement that such company will not remove the suit for trial into the United States circuit court or federal courts, and file in the office of the secretary of state a written instrument, duly signed and sealed, certifying such appointment, which shall continue until another attorney be substituted.Laws of 1870, chapter 56, section 22, page 87; or 1 Taylor's Statutes, page 958, section 22.

Desiring to do business in the State of Wisconsin, and in compliance with the provisions of this statute, the Home Insurance Company of New York, on the first day of July, 1870, filed in the office of the secretary of state of Wisconsin an appointment of Henry S. Durand as their agent in that state, on whom process might be served. The power of attorney thus filed contained this clause : “ And said company agrees that suits commenced in the state courts of Wisconsin shall not be removed by the acts of said company into the United States circuit or federal courts.

The state courts of Wisconsin held that this statute and the agreement under it justified a denial of the petition to remove the case into the United States court. The insurance company deny this proposition, and this is the point presented for consideration.

Is the agreement thus made by the insurance company one that, without reference to the statute, would bind the party making it ?

Should a citizen of the State of New York enter into an agreement with the State of Wisconsin, that in no event would he resort to the courts of that state, or to the federal tribunals within it, to protect his rights of property, it could not be successfully contended that such an agreement would be valid.

Should a citizen of New York enter into an agreement with the State of Wisconsin, upon whatever consideration, that he would in no case, when called into the courts of that state or the federal tribunals within it, demand a jury to determine any rights of property that might be called in question, but that such rights should in all cases be submitted to arbitration or to the decision of a single judge, the authorities are clear that he would not thereby be debarred from resorting to the ordinary legal tribunals of the state. There is no sound principle upon which such agreements can be specifically enforced. We

e see no difference in principle between the cases supposed and the case before us. Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life or his freedom, or his substantial rights. In a criminal case, he cannot, as was held in Cancemi 8 case, 18 N. Y. 128, be tried in any other manner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men. In a civil case he may submit his particular suit by his own consent to an arbitration, or to the decision of a single judge. So he may omit to exercise his right to remove his suit to a federal tribunal, as

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