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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Bigelow CASE, Defendant and Appellant.*

Cr. 5714.

Decided: January 08, 1957

Cantillon & Cantillon, Beverly Hills, Paul M. McDonough, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

This is an appeal by the defendant from a judgment of conviction of one count of grand theft in violation of section 487, subd. 1, Penal Code.

The information filed by the District Attorney of Los Angeles County alleged that the defendant ‘on or about the 15th day of April, 1955, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously take Twelve Hundred Dollars ($1,200), in money, * * * the personal property of Carol Louise Heide.’ (Emphasis added.) The defendant was further alleged to have been previously convicted of the crime of forgery, a felony, in 1940. The defendant entered a plea of not guilty, and denied the prior conviction as alleged. Trial by jury was waived, and the court adjudged the defendant guilty and found the prior conviction not true and sentenced him to the state prison.

The defendant has appealed from the judgment and sentence. No appeal lies from the sentence, and therefore the attempted appeal therefrom will be dismissed. People v. Douglas, 141 Cal.App.2d 33, 34, 296 P.2d 1.

A substantial resume of the facts is as follows: Carol Louise Heide, age twenty-three, first made the acquaintance of the appellant at the Camera Club in Anchorage, Alaska, in 1953. She was married at the time, as was the appellant. The two families became friendly and Mrs. Heide went to work coloring photographs for the appellant, in his studio and photographic supply shop. A domestic rift came into being between Mr. and Mrs. Heide and she secured a divorce from her husband on or about February 15, 1955. Prior to the securing of the divorce Mrs. Heide made reservations to leave Alaska by airplane and go to Seattle, Washington. She said that about two weeks before leaving Anchorage, Alaska, she withdrew $2,500 in cash, in fifty and twenty-dollar bills, and kept it in a box in a suitcase in her apartment. She also stated that she discussed leaving Alaska with the appellant, that he drove her to the airport, but shortly before she was to leave she became ill and he changed the tickets to a later flight—that when she came out of the restroom he told her that his mother was sick in San Francisco, and that he was going out on the same flight with her. The plane was scheduled to land in Seattle, Washington, however, due to bad weather, the plane landed at Portland, Oregon. Upon arriving in Portland, Oregon, at the airport she said she looked in her purse and found that the envelope containing the $2,500 was missing and that the appellant told her he had the money, and that if she ‘played along with him’ she stood a chance of getting it back. Her testimony was that she had the money in an envelope when she got on the airplane at Anchorage, Alaska, and that she ‘didn't notice the money was missing’ on the plane. She said further, ‘No, I went to sleep on the plane. It was a night flight. And I didn't notice until after I got off. But I had the money when I got on, and I know I had it part of the time, because in opening my purse to get a cigarette I could see the envelope was still there.’

She then stated that she did not know who had taken her money until the defendant told her that he had it. She stated that she was very glad about landing in Portland because her family resided there, but she claimed that the appellant threatened her and that he would make a lot of trouble for her if she said anything. It is not clear how he could have made a lot of trouble for her, nor is it clear why she could not have secured a policeman then and there and had the appellant arrested, nor is it clear why she did not contact her folks, who apparently lived in Portland, Oregon. Nothing whatsoever appears in the record to indicate that she even called any of her family on the telephone, let alone visit with them, but to the contrary, her testimony was, ‘* * * we purchased tickets to Sacramento, bus tickets, and then went on to Reno.’

Some place along the course of events, and it is not made certain in the record, just where it first occurred, Mrs. Heide and the appellant started to live together as husband and wife, going under the names of Marie St. Clair and Paul St. Clair. Mrs. Heide and the appellant apparently went by bus from Portland, Oregon, to Sacramento, California, and stayed in a hotel in the latter city. They then went by bus to Reno, where they resided in an apartment as husband and wife, using the assumed names.

In Reno, Nevada, she applied for and secured a social security card and secured employment as a shill in a gambling establishment in Reno, under her assumed name. She was required to secure a permit through the police department of Reno, Nevada, before she could work in a gambling hall. This necessitated the taking of her fingerprints and the giving of other information, all of which was done at the police station, and at no time did she make any complaint to anyone in the police department about anything. From time to time she gambled while they were in Reno.

Further, while in Reno, Nevada, the defendant bought an automobile and put the title in the name of Paul and/or Marie St. Clair. Although she was there at the time of the purchase, Mrs. Heide did not make any claim to the automobile dealer who sold the car to them that the money being used to purchase the automobile was hers, nor did she object to the purchase of the car. After buying the automobile they drove it to Las Vegas, Nevada, and thence to Burbank, California, where they lived together as husband and wife from about March 1, 1955, to April 15, 1955. She secured employment under her assumed name with an investment company with offices in the Statler Hotel Building, and later went to work for a bus line company. The defendant secured employment with Kierulff Electronics. She did not contact any police officers in Los Angeles or Burbank during the period of time she was living with the defendant as husband and wife in Los Angeles county. On or about April 15, 1955, the defendant left the apartment where they were living and some time thereafter, namely in January, 1956, Mrs. Heide met the defendant on the street in downtown Los Angeles, and at that time she told him that she had a warrant out for his arrest ‘but if you will give me back part of the money anyway, make restitution, I'll drop the charge.’ She stated that after quite a walk together he jumped on the flatbed of a passing truck and went away on it.

She further stated that in their entire relationship there was no talk of love or marriage.

The defendant denied any taking of the money from Mrs. Heide and denied that he ever told her that he had taken any money from her, and stated that he never even saw any money in her purse or otherwise.

Further, the defendant stated that he had about $2,300 of his own money with him, which represented an accumulation of savings over a period of about seven years. He also stated that in Portland Mrs. Heide went to a hotel and he went to two bus stations and made arrangements for reservations and tickets; that she stayed at the hotel because ‘she wanted to do some * * * personal business.’ From there they went by bus to Sacramento, California, and from there to Reno, thence to Las Vegas, and then to Burbank.

Section 487, subd. 1 of the Penal Code reads as follows:

‘Grand theft is theft committed in any of the following cases:

‘1. When the money, labor or real or personal property taken is of a value exceeding two hundred dollars ($200); provided, that when domestic fowls, avocados, citrus or deciduous fruits, nuts and artichokes are taken of a value exceeding fifty dollars ($50); provided, further, that when the money, labor, real or personal property is taken by a servant, agent or employee from his principal or employer and aggregates two hundred dollars ($200) or more in any 12 consecutive month period, then the same shall constitute grand theft.’ (Emphasis added.)

Section 497 of the Penal Code, enacted in 1872, and amended in 1905 by adding the references to embezzlement, reads as follows:

‘Every person who, in another state or country steals or embezzles the property of another, or receives such property knowing it to have been stolen or embezzled, and brings the same into this state, may be convicted and punished in the same manner as if such larceny, or embezzlement, or receiving, had been committed in this State.’ (Emphasis added.)

In our opinion, the charge which should have been filed against the defendant was one for a violation of section 497 of the Penal Code and not one under section 487, subd. 1.

Referring first to the cases cited by the attorney general: In People v. Staples, 91 Cal. 23, 27 P. 523, decided in 1891, the opinion recites in the first paragraph thereof that the defendant was convicted of the crime of grand larceny, and later on, 91 Cal. at page 27, 27 P. at page 524, it is said:

‘The information charges in plain, direct, and unequivocal terms that the defendant did, in the territory of Arizona, unlawfully, willfully, and feloniously take, steal, and carry away from the possession of one Margaret McGregor a watch and chain, of the value of $75, then and there being the personal property of said Margaret McGregor; and that, after having so unlawfully taken and stolen said watch and chain, he did bring the same into the county of Los Angeles. This states the exact offense defined in section 497 of the Penal Code, the jurisdiction of which is, by section 789, conferred upon any county of the state, into or through which the stolen property has been brought.’

The facts of this case briefly were that the defendant was a porter on a through sleeping car. Mrs. McGregor was a passenger on the train travelling from Chicago to this state. A watch and chain were stolen from her berth just about the time the train crossed the Colorado River from Arizona into San Bernardino county. The evidence left it somewhat doubtful upon which side of the boundary the theft occurred and the defendant asked the court to instruct the jury to acquit him unless the jury were satisfied that the larceny was committed in Arizona. The request was refused.

The court said in 91 Cal. at page 27, 27 P. at page 524: ‘When goods are stolen in one jurisdiction and carried into another, in legal contemplation the crime of larceny is committed in both jurisdictions, and may be punished in either. Our statute on that point (Pen.Code, §§ 497, 786, 789) merely re-enacts the law as it was before. People v. Mellon, 40 Cal. [648] 654; State v. Brown, 8 Nev. [208] 212. Or, perhaps, it is more correct to say that our statute has adopted one of the two views upon which the courts of other states have divided in deciding upon the common-law rule.’

It must be clear, therefore, that the facts as set forth in the information actually fitted the offense as is described in section 497, or, just as the court said ‘[t]his states the exact offense defined in section 497’ and not an offense under section 487, and yet the verdict returned was, ‘We, the jury * * * find the defendant guilty of grand larceny and recommend him for mercy.’ The record seems to disclose that the case was started at 10:00 a. m., December 2, 1890, a jury was selected, the evidence submitted, the jury instructed at 2:35 p. m., and they returned with a verdict at 4:50 p. m. On December 9, 1890, the defendant was sentenced to San Quentin prison.

The court further said the the only question worthy of consideration in the Staples case was whether it was essential to prove that the original larceny was committed in Arizona, as alleged in the information. In holding that the variance was unimportant in the particular case, the opinion sets forth, 91 Cal. at page 28, 27 P. at page 524: ‘We do not think it was. Whether the original larceny was committed in Arizona or across the line in San Bernardino, the taking of the stolen property into Los Angeles county was equally criminal; and not only was it equally criminal, it was the same offense, punishable in the same manner, to the same extent, in the same jurisdiction, under the same law. The precise spot at which the criminal act was initiated was a mere circumstance of the offense, properly enough stated in the information, but not essential to be proven as stated. If the information had charged a larceny in Los Angeles county, proof of an original taking in San Bernardino or in Arizona would have been admissible. The only real question is whether evidence of a larcency on the west bank of a river is such a substantial variance from the charge that it was committed on the east bank as to be inadmissible. Under the circumstances of this case, where the theft occurred on a moving train in the act of crossing the river, we do not think the variance was material.’

In People v. Black, 122 Cal. 73, 54 P. 385, decided in 1898, the defendant was charged with a violation of section 497 of the Penal Code, in that he stole certain jewelry in the Dominion of Canada, and thereafter brought the articles to San Francisco. The defendant contended that the court in San Francisco had no jurisdiction to try him under the provisions of section 789 of the Penal Code. The court held that there was jurisdiction and affirmed the conviction.

The court went on to say in 122 Cal. at page 75, 54 P. at page 386:

‘Under the great weight of authority, if the defendant had been charged with the crime of grand larceny committed in the city and county of San Francisco, state of California, it would seem the evidence introduced at this trial showing the commission of the larceny in the Dominion of Canada, and the felonious bringing of the stolen property into the jurisdiction of the city and county of San Francisco, state of California, would support an indictment in said city and county charging larceny. See Bishop's New Criminal Law, sec. 136, et seq. But in the present case the form of the indictment does not justify the consideration of that somewhat interesting question.’ (Emphasis added.)

Obviously, the statement just quoted was not necessary to a disposition of the case because, as heretofore pointed out, the defendant was charged with violating the provisions of section 497 of the Penal Code, the proper section under the circumstances, and not section 487.

With reference to the comment, as above quoted, as to ‘the great weight of authority’, there is some considerable doubt. The author who is cited as authority for the statement made, namely Bishop on Criminal Law, states as follows, 9th Ed., section 141, page 96:

‘§ 141. The Authorities—have not always proceeded on the principles thus stated. In an old English case, where the goods seized piratically on the ocean were carried by the thief into a county of England, the court refused to take cognizance of the larceny, and committed the offender to answer to the admiralty; because, ‘the original act, namely, the taking of them, was not any offence whereof the common law taketh knowledge; and, by consequence, the bringing of them into a county could not make the same felony punishable by our law.’ The doctrine has been since applied, in England, to goods stolen both in other parts of the king's dominions and in foreign countries. This doctrine has been followed by the courts of New York, New Jersey, Pennsylvania, North Carolina, Tennessee, Indiana, Louisiana, Nebraska, and Georgia. It has been discarded in connecticut, Vermont, Maine, Mississippi, Iowa, Kentucky, Nevada, Illinois, Oregon, Maryland, and South Carolina. In Massachusetts, the court held defendants liable where the original larceny was in another of the United States; but reached a contrary conclusion where it was in one of the British provinces, a distinction which the Maine tribunal refused to recognize, deeming it without foundation. So, in Ohio, a conviction was sustained where the original taking had been in another State of the Union, but reversed where it had been in Canada. The rule which holds the offender guilty in the State to which he brings the stolen property has likewise been prescribed, by statute, in New York since the before mentioned adjudication was made; also in Alabama, Missouri, Kansas, Michigan, and some other States.' In other words, where the situation was as it might well have been in the present case, that is, the theft taking place in Alaska, Canada, or on the high seas, the authorities stand eleven to eleven and there appears to be no great weight one way or the other.

In People v. Barnes, 57 Cal.App. 515, 207 P. 695, decided in 1922, the defendant stole an automobile in Tijuana, Lower California, Mexico, and brought the same into the county of San Diego. He was charged with and convicted of the offense of violating section 497 of the Penal Code. The court properly held, under the provisions of section 789, that the court in San Diego had jurisdiction.

In People v. McGowan, 1932, 127 Cal.App. 39, 14 P.2d 1036, the defendant was charged with and convicted of two counts of burglary in Del Norte county. The information charged, in the first count, that the defendant did on a certain date in Curry county, Oregon, unlawfully enter a building with intent to commit a theft, and did then and there transport into the county of Del Norte, California, the property stolen by means of burglary. The substance of the second count, for our purposes here, was the same as the first. The defendant appealed on the ground that the burglary was a completed offense in Oregon, and that the courts of California have no jurisdiction over the offense. True it is the court did say in 57 Cal.App. at page 42, 14 P.2d at page 1037:

‘It is unnecessary to cite authorities to the effect that the courts of this state have no jurisdiction over completed offenses committed in other states. It is only when the offense committed is a continuing offense, or one which reaches across boundary lines, the jurisdiction is given. Thus, if the one who commits the offense of burglary also commits larceny by stealing property, brings that stolen property across the boundary line, the offense of larceny is continued from the adjoining state into this state, and the superior court of any county into which the stolen property is brought may take jurisdiction of the offense committed in such county, to wit, the offense of larceny, not the offense of burglary.’

It is extremely difficult to see how that language was necessary to the decision which the court made. The court, later on in the opinion sets forth subdivision 2 of section 27 of the Penal Code, and sections 497 and 789 of the same code. The court then held that there was no jurisdiction to try the defendant for the offense as charged and which was committed wholly in Oregon, and reversed the judgment.

It appears to us that the better reasoning dictates that the defendant should have been charged with a violation of section 497 in the case before us, and further that a conviction under section 487 is unwarranted and improper under the circumstances of this case.

In People v. Mills B. Sing, 1919, 42 Cal.App. 385, 183 P. 865, the defendant was convicted of grand larceny in Los Angeles county. The defendant went to Orange county and made arrangements to purchase certain potatoes. He hauled the potatoes to Los Angeles county and did not pay the owners for the same. The defendant claimed that the court in Los Angeles county had no jurisdiction, that the offense was begun, ended and consummated in Orange county.

The court held, in effect, that there was a larceny in Orange county, and further, that there was a new larceny in Los Angeles county, saying in 42 Cal.App. at pages 392–393, 183 P. at page 868: ‘If, after one has done what completes the theft, he continues traveling away with the goods, still intending to appropriate them to his own use, each step is a new trespass and a fresh larceny. So that the possession of goods stolen by the thief is a larceny in each county into which he carries them. The legal possession still remaining in the true owner, every moment's continuation of the trespass and felony amounts, in legal contemplation, to a new caption and asportation. 1 Bishop's New Criminal Procedure, sec. 59; 17 R.C.L., pp. 45, 46; People v. Staples, 91 Cal. [23] 27, 27 P. 523. In legal contemplation, the crime of larceny is committed in both counties, and the thief may be prosecuted and punished in either.’

It is at once apparent that the Sing case is not comparable to the case at hand, and whatever the law may be as to the county-to-county situation in the same state, that is not determinative of the state-to-state or foreign country-to-state or high seas-to-state situation, which we have before us.

There is not one word of testimony which we can find as to where the taking occurred. That is, there is no testimony so far as we can determine as to whether the money was taken in or over the Territory of Alaska; British Columbia, Canada; the high seas; the state of Washington, or the state of Oregon.

In Stanley v. State, 1873, 24 Ohio 166, 15 Am.Rep. 604, the defendant was charged with and convicted of the crime of grand larceny and sentenced to the penitentiary. The indictment charged that the defendant, late of Cuyahoga county, Ohio, at the county aforesaid did with force and arms, then and there unlawfully steal and carry away certain silverware, of the property of George Harris. The facts, briefly, were that the goods described in the indictment belonged to Harris, they were stolen from Harris at the city of London, in the Dominion of Canada, that the goods were afterward found in the possession of the defendant in the county of Cuyahoga, Ohio. The court stated the question was—if property be stolen at a place beyond the jurisdiction of the state and of the United States and afterward brought into the state by the thief, can he be lawfully convicted of larceny in the state where he is found? Among other things the court said in deciding the case in 24 Ohio 169, 15 Am.Rep. at pages 606–607:

‘We are unwilling to sanction the doctrine or to adopt the practice, whereby a crime committed in a foreign country, and in violation of the laws of that country only, may, by construction and a mere fiction, be treated as an offense committed within this State and in violation of the laws thereof. In this case the goods were stolen in Canada. They were there taken from the custody of the owner into the custody of the thief. The change of possession was complete. The goods were afterward carried by the thief from the Dominion of Canada to the State of Ohio. During the transit his possession was continuous and uninterrupted. Now, the theory upon which this conviction is sought to be sustained is, that the legal possession of the goods remained all the while in the owner. If this theory be true, it is true as a fiction of the law only. The fact was otherwise. A further theory in support of the conviction is, that as soon as the goods arrived within the State of Ohio, the thief again took them from the possession of the owner into his own possession. This theory is not supported by the facts, nor is there any presumption of law to sustain it.

‘That the right of possession, as well as the right of property, remained all the time in the owner is true as matter of law. And it is also true, as a matter of fiction, that the possession of the thief, although exclusive as it must have been in order to make him a thief, is regarded as the possession of the owner, for some purposes. Thus, stolen goods, while in the possession of the thief, may be again stolen by another thief; and the latter may be charged with taking and carrying away the goods of the owner. And for the purpose of sustaining such charge, the possession of the first thief will be regarded as the possession of the true owner. This fiction, however, in no way changes the nature of the facts which constitute the crime of larceny.

‘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 property, constitutes a new ‘taking’ of the property, either as matter of fact or of law.'

The court further said in 24 Ohio 170, 15 Am.Rep. at page 608:

‘We fully recognize the common-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 offense. 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. It was 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 offense only, and that offense 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 offense 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.’'

The court continued in 24 Ohio 172, 15 Am.Rep. at pages 610–611:

‘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 offense committed by the prisoner.

‘The judgment below is wrong, unless every act of the defendant, which was necessary to complete the offense 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 foreign 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 pretense 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 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 the 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 offense; therefore, no complete offense 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 him 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 offense. But that offense 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 noted here that what the court in Ohio suggested is precisely what the legislature of California did in 1872 when it adopted section 497 of the Penal Code.

The judgment in the Stanley case was reversed.

In People v. Loughridge, 1867, 1 Neb. 11, the defendant was tried upon an indictment charging that in the county of Douglas, Nebraska, he did steal a pocketbook and other property to the amount of about $500. The evidence showed that the property in question was taken from one Hanson at St. Johns, in the state of Iowa, and found in the possession of the defendant in Douglas county, Nebraska, a few days subsequently. The judge, in effect, told the jury that if they found that the defendant feloniously took the property in the state of Iowa and escaped to Nebraska and was found in possession of the property in Nebraska, they might find him guilty under the indictment.

The judgment was reversed and in the opinion the court said, among other things, the following at pages 12–13:

‘No case sustaining an indictment under such circumstances asserts the rights of courts of one State to entertain jurisdiction of cases where crimes were committed in other States; but they all proceed upon the assumption that the possession in the thief amounts to a larceny in every county into which he carries the goods, because the legal possession remains in the true owner, and therefore every moment's continuance of the felony amounts to a new caption and asportation. There is considerable subtlety in this principle, and it was, no doubt, suggested for the convenience of trying felons in the county where they might be taken with the goods, and to avoid their escaping punishment by fleeing from one State or locality into another.

‘No legislator in defining larceny, and affixing a penalty to the offence, ever contemplated such an interpretation. To allow this interpretation to hold in the case of different counties of the same State may with safety be permitted. Here the accused may have compulsory process for his witnesses, and a conviction in one county will be a bar to that in another. To extend its application to States, is to attach to the crime of larceny, penalties uncertain in their character, possibly greatly incommensurate with the offence committed, and such as do not attend any other crime. Conviction in one State is no bar to a conviction in another. For larceny committed in the State of Missouri, the thief bringing the goods here by way of Iowa, may be first tried here, under this doctrine, and sentenced for ten years; the same in Iowa, and lastly convicted and sentenced in Missouri. So from the fear that the thief might escape justice altogether, we find a warrant to inflict upon him a triple penalty. I should prefer the ultimate escape of now and then a culprit, than assume jurisdiction upon a theory which to me seems based on a fiction rather than on a clear and positive principle of law. The Constitution of the United States has provided for cases where offenders fly from the State where the offence is committed. Wherever he is found he may be secured, and sent to that State for trial from which he has fled, on demand of the executive thereof. Under this provision escape out of a State, while it may involve some inconvenience, need not defeat justice. If the legislature of this State like that of some of the States, chooses to make the possession of stolen goods an offence, it would be proper for it to do so. I am of the opinion, therefore, that the judgment of the court below, should be reversed and the prisoner discharged.

‘Judgment reversed.’

Apropos of what the court in Nebraska said in reference to adopting proper legislation on the subject matter, surely no legislator in California, since 1872, contemplated that a district attorney would charge a defendant with grand larceny under the theory of a ‘continuing trespass', under the circumstances as presented in this case, in the face of section 497 of the Penal Code, which was obviously adopted for the purpose of providing for the very situation with which we are confronted in the instant case.

At one time in California it was grand larceny to steal or take the property of another of the value of $50 or more, and was punishable by death in the discretion of the jury. Stats. 1851, Ch. 95. It was at that time petit larceny to steal the property of another under the value of $50, and was punishable by ‘any number of lashes not exceeding fifty upon the bare back’.

There is nothing, so far as we are aware, to establish that the judgment of conviction here would be recognized in Nevada, Oregon, Washington, Canada or Alaska. True it is that we have statute 793 of the Penal Code which, in effect, would preclude a prosecution here if the defendant had been prosecuted in another state or country. However, assuming that the other states mentioned do not have such a law, would anyone contend that the defendant should be prosecuted in California, and serve a term in the penitentiary, as the defendant in this case is presently doing, then have him transported to Nevada and be prosecuted there and serve another term in the Nevada penitentiary for the offense of grand theft and the same in Oregon and Washington, and then to Canada, serve a term there and perhaps be lashed as is provided for in Canada, and then to Alaska for still another term, and if Alaska had the same law we had in 1851, put the defendant to death? Yet that is the ultimate of the sum and substance of the argument of the attorney general.

In Morrissey v. People, 1863, 11 Mich. 327, the plaintiff in error was convicted of larceny on an information charging the larceny to have been committed in Detroit, Michigan. On the trial it appeared that the articles mentioned in the information were taken from a store that was broken into at Windsor, on the opposite side of the Detroit River in Canada, and were brought over the river into Detroit.

The statute is substantially in these words: ‘Every person who shall feloniously steal the property of another, in any other State or country, and shall bring the same into this State, may be convicted and punished in the same manner as if such larceny had been committed in this State; and in every such case such larceny may be charged to have been committed in any town or city into or through which such stolen property shall have been brought.’ Comp.Laws Mich. 1857, § 5797.

Morrissey objected to the evidence upon two grounds: (1) that the information did not charge the larceny to have been committed in Canada, and (2) that the act was unconstitutional.

The court held that the judgment should be reversed and the prisoner discharged. Campbell, J., in his opinion, said, among other things at pages 336–341:

‘But a construction which involves such unjust consequences to defendants ought not to be adopted under any circumstances if ony other can be safely applied.

‘* * * Although it is loosely said that the continued possession amounts to a new caption and asportation, yet the decisions show that this is not accurately true, for if it were the cases just referred to are incorrect. The real ground of the decisions is that the taking and subsequent felonious possession form one continuous act, which derives its character from the original taking, but which may be punished by the authority offended by such taking in any place within the realm where the offense has been kept up. No one has ever supposed, and certainly no case has ever decided, that a possession of stolen goods in different counties amounted to a succession of separate punishable larcenies. The decisions recognize, in all the continuing possession, but one single offense committed within the jurisdiction. It is in the power of every country to select the place of trial and punishment at its option, and the ordinary rules of locality have nothing to do with the question whether a State can punish offenses not committed within its jurisdiction.

‘There are some American cases which assume that larceny in one State, followed by possession in another, is punishable in the latter at common law. So far as they purport to rest on English decisions there is no foundation for them, and they do not in general lay down any other source of authority except local usage.

‘A defendant who is called upon to respond to an information charging a local common law offense in Michigan, can not be said to be apprised of the charge that the offense was in fact committed in Canada, or that any inquiry is to be made into Canadian transactions. Nor is it possible for him, under an information of this form, to avail himself of the statutory defenses. The statute expressly provides that an acquittal or conviction of the same offense in Canada may be pleaded specially in bar. If the defendants had to this information charging an offense in Wayne county pleaded an acquittal in Canada, there is no process by which it could be shown that the offenses are identical. Until the trial is actually commenced the prisoners can not, and the court can not, determine whether the offenses are the same. The Canada indictment would not, neither would the Canada proofs, necessarily or probably trace the goods to Detroit; and the court could not assume that the defendants were not pursued for doing what the accusation fairly implies to have been done in Michigan. The record here, instead of agreeing with the Canadian proofs and records, varies entirely from them.

‘The most serious difficulties in the way of a fair trial—apart from the question of territorial jurisdiction—are not lessened by the other interpretation. Whatever view may be taken of the real meaning of the statute, it becomes necessary, upon the trial, to investigate transactions in Canada, and to determine their character under the laws of Canada. It is not within the power of the State of Michigan to compel the attendance of witnesses for the defense from another country. And, where a transaction occurs abroad, it is not only a fair but an inevitable presumption, that most of the witnesses are abroad. Where the main fact to be determined is a criminal act, committed beyond the State, the defendant is likely to be at the mercy of the prosecution. He can not produce either eye-witnesses of the transaction, or impeaching witnesses, unless they choose to present themselves. When the Constitution assures a defendant ‘compulsory process for obtaining witnesses in his favor,’ it can not contemplate a trial for foreign crimes, where it is not presumable that such witnesses can be compelled to appear. It is also necessary to prove foreign laws as facts; and the foreign common law must be proved by living witnesses. Even if we could, in a criminal case, make any presumption concerning a foreign law, that presumption may be overthrown. And although it may be true that stealing is a crime punished by all nations, it is not the same thing in all nations. Some codes make no distinction between larceny and embezzlement.'

In the case of Commonwealth v. Uprichard, 1855, 3 Gray, Mass., 434, 63 Am.Dec. 762, the ‘indictment charges that the two defendants, at Boston, on the twenty-seventh of July, 1854, the gold pieces and other coins, the property of George D. Twinning, in his possession then and there being, feloniously did steal take, and carry away.’ 3 Gray, Mass., 434, 63 Am.Dec. at page 762. By the facts of the case, it appeared that ‘Uprichard and Carey were soldiers in the service of the queen of England, at Sidney, in the province of Nova Scotia; that the coins alleged to be stolen were partly the property of George D. Twinning, a deputy commissary at the military station in Sidney, and partly the property of the queen, in the care and control of said commissary; that the property was taken from the military chest without right, said chest being in the possession of said Twinning; that the defendants deserted about the same time, with certain of said coins in their possession, and were found in this state, each having a part of the stolen property in his possession.

‘Upon the evidence offered, the counsel for the defendants asked the court to rule that the indictment could not be supported by the evidence: 1. Because the law in force at Sidney was not proved; 2. Because said property, if stolen at all, was stolen at Sidney, out of the state of Massachusetts, and out of the United States; and the bringing of said stolen property into, and the possession of it in, Boston would not constitute the crime of larceny * * *.’ 3 Gray, Mass., at page 435, 63 Am.Dec. at page 763.

The trial court instructed the jury that if the property was stolen by the defendant at Sidney, in Nova Scotia, one of the colonies and possessions of the Queen of Great Britain, and the property so stolen and continuing in the possession of the defendant was brought by him into Massachusetts and into Boston, the indictment charging him with stealing them, being in possession of the owner, in this county, was legally sustained and that the defendant could be convicted and punished for this offense by the laws of Massachusetts.

The court said in determining the case, among other things, the following in 3 Gray, Mass., at page 436, 63 Am.Dec. at pages 764–768:

‘If the offense is committed anywhere within the realm of England, in whatever county, the same law is violated, the same punishment is due, the rules of evidence and of law governing every step of the proceedings are the same, and it is a mere question where the trial shall be had. But the trial, wherever had, is exactly the same, and the results are the same. A conviction or acquittal in any one county is a bar to any indictment in every other; so that the question as to the place of trial is comparatively immaterial. But even in England, a crime, being an offense against the laws of England, committed on the high seas, and not within the body of any county, cannot be tried in any county, but only in the courts of admiralty jurisdiction; and a fortiori, an offense committed in a foreign country by persons not there amenable to the laws of England could not, upon principle, be tried and punished in England; and the rule that when goods are feloniously taken and brought into a county, it may be charged and tried as an offense in that county, did not anciently extend to goods stolen in any place not within the common-law jurisdiction: * * * This was within the principle that in whatever part of the same government the offense was first committed, the same law was violated, the same rule and measure of punishment attached, and with the same consequences, in whatever part of the territory of the same government the trial was had. * * *

‘* * * In some of the states it is held that, according to the English rule in respect to counties, the carrying of stolen goods by the thief into another state from the one in which they were stolen is a new caption and a new asportation in the state into which they are thus carried. In other states a different rule is held.

‘It seems to have been considered that although the several states are, in their administration of criminal law, regarded as sovereign and independent, yet, as they were originally English colonies, and acknowledged their subjection to the common law of England, and claimed its privileges, and all equally derived their principles of criminal jurisprudence mainly from that source, and as they had been, both before and since the revolution, closely united for many purposes, there was an analogy more or less strict between the relations of these states to each other and those of counties under the same government; and therefore that the same rule might be safely adopted.

‘It has then been argued that the same rule ought to apply to foreign governments as to the several states of the Union, because in their respective jurisdictions, and in the laws which regulate their internal police, these are as much foreign to each other as each state is to foreign governments. * * * Laws to punish crimes are essentially local, and limited to the boundaries of the state prescribing them. Indeed, this case, and the cases cited, proceed on the ground that the goods were actually stolen in this state. The commission of the crime in Nova Scotia was not a violation of our law, and did not subject the offender to any punishment prescribed by our law. This indictment proceeds on that ground, and alleges the crime of larceny to have been committed in violation of the laws of this commonwealth, and within the body of this county. It is only by assuming that bringing stolen goods from a foreign country into this state makes the act larceny here that this allegation can be sustained; but this involves the necessity of going to the law in force in Nova Scotia to ascertain whether the act done there was felonious, and consequently whether the goods were stolen, so that it is by the combined operation of the force of both laws that it is made felony here. Were it any other offense than that of larceny, which gives an ambulatory character to the offense by the movable character and the guilty possession of the goods stolen, there could be no doubt of the law, and no plausible pretense that our law had been violated, or the party amenable to penalties created by it. Hence the necessity, in the constitution of the United States establishing the Union, for a fundamental clause providing for the mutual surrender of fugitives from justice, and also for treaties of extradition providing for the mutual surrender by our government of persons charged with crimes in another.

‘* * * Here the question is one of principle, whether the defendants have violated our law. It is said that they commit a new theft by the possession of stolen goods in our jurisdiction. But what are stolen goods? Are we to look to our own law, or to the law of Nova Scotia, to determine what is a felonious taking, what is the animus furandi, and the like? If we look to the law of Nova Scotia, and that law is different from ours in defining and prescribing theft, then we may be called on to punish as a crime that which would be innocent here. If we look to our own law, then a taking and carrying away of goods in Nova Scotia, under circumstances which would not be criminal there, might be punishable here. Foreigners coming within our jurisdiction with goods, and complying with customary regulations, commit no offense, and commit none in removing them from place to place in the same or different counties. If they can be indicted and punished here on the ground that such goods were stolen goods when they were brought in, it is but another mode of charging that the goods were obtained by a violation of the criminal laws of another country, and our courts must necessarily take jurisdiction of the violations of the criminal laws of foreign independent governments, and punish acts as criminal here solely because they are in violation of the laws of such government, and which, but for such violation, would not be punishable here. It seems difficult to distinguish this from judicially enforcing and carrying into effect the penal laws of another government, instead of limiting our criminal jurisprudence to the execution of our own.’

In New York state there is a statute comparable to our section 497 of the Penal Code, namely section 1301, New York Penal Law, McKinney's Consol. Laws, c. 40. Before the adoption of section 1301 in New York the courts there held that a person could not be charged and convicted of an offense of theft where the original taking occurred outside of the state of New York. In People v. Berger, 142 Misc. 178, 254 N.Y.S. 136, the defendant was a dealer in coupons and he unlawfully obtained premiums of a certain manufacturing company in New Jersey. He redeemed the coupons for personal property and took such property from New Jersey into New York and attempted to sell such property there. The court affirmed the conviction of the defendant who was charged with a violation of section 1301 of the Penal Law, and in deciding the case said in 254 N.Y.S., at page 145:

‘* * * we must keep in mind that the substantive crime is the act of stealing in New Jersey. Over this we have no jurisdiction, but when the one who is a party to that offense brings the proceeds of the larceny into this state, he may be prosecuted in our courts for a violation of section 1301 under our Penal Law.’ (Emphasis added.)

To affirm the judgment of conviction in this case it is necessary to adopt the theory of the legal fiction of a continuing trespass in grand theft cases. Even if such a theory were adopted the proof submitted in this case is, in our opinion, wholly insufficient to sustain the judgment, and in any event, we are of the opinion that the legislature, by adopting section 497 of the Penal Code, said in effect that, ‘We will have none of the legal fiction in California in matters of this sort, but we will adopt a statute which will spell out the crime and provide for the punishment of the very evil in question.’ We prefer to believe that the members of the legislature in 1872, knew of the variance of the rules in the various states and in England and elsewhere in respect to the problem of prosecutions in this state for thefts committed in other states or countries, and the property so stolen being brought into California, and they wisely adopted section 497 to cover the particular problem. The real offense here is not in taking the property, wherever that took place, buy to the contrary, the real offense is in bringing it into California, and that is what the defendant should have been charged with, if anything.

The attempted appeal from the sentence is dismissed and the judgment is reversed.

I dissent.

It is argued on appeal, in effect, that appellant should have been charged with the violation of Section 497 of the Penal Code instead of 487. It is also argued that, in the circumstances, the court is without jurisdiction because the offense was committed outside the state of California.

I am in accord with respondent's contentions that, ‘The appellant committed a ‘continuing trespass' which is expressly recognized under California case law and statutes.

‘People v. Staples, 91 Cal. [23] 27, [27 P. 523]; People v. Black, 122 Cal. 73, 75, [54 P. 385]; People v. Barnes, 57 Cal.App. 515, 517–518 [207 P. 695]; People v. [Mills B.] Sing, 42 Cal.App. 385, 393 [183 P. 865]; People v. McGowan, 127 Cal.App. 39, 42 [14 P.2d 1036]; Penal Code, Section 497.

‘Penal Code Section 27(2) further provides:

“The following persons are liable to punishment under the laws of this state:

“2. All who commit any offense without this state which, if committed within this state, would be larceny, robbery, or embezzlement under the laws of this state, and bring the property stolen or embezzled, or any part of it, or are found with it, * * *.'

‘In People v. Staples, supra (91 Cal. 23), at page 27 [27 P. 523], it is said:

“* * * When goods are stolen in one jurisdiction and carried into another, in legal contemplation the crime of larceny is committed in both jurisdictions, and may be punished in either. * * *'

‘The court in People v. [Mills B.] Sing, supra (42 Cal.App. 385), at pages 392–393 [183 P. 865], stated:

“* * * If, after one has done what completes the theft, he continues traveling away with the goods, still intending to appropriate them to his own use, each step is a new trespass and a fresh larceny. * * *'

‘People v. McGowan, supra (127 Cal.App. 39), at page 42 [14 P.2d 1036], is equally explicit:

“It is unnecessary to cite authorities to the effect that the courts of this state have no jurisdiction over completed offenses committed in other states. It is only when the offense committed is a continuing offense, or one which reaches across boundary lines that jurisdiction is given. Thus, if the one who commits the offense of burglary also commits larceny by stealing property and then brings that stolen property across the boundary line, the offense of larceny is continued from the adjoining state into this state, and the superior court of any county into which the stolen property is brought may take jurisdiction of the offense committed in such county, to wit, the offense of larceny, * * *.' (Emphasis added.)

‘Thus, the doctrine of ‘continuing trespass,’ as handed down from the common law, is well engrained in the case law of this state.'

Appellant's argument is highly technical, but lacks support in the record and the law.

I would affirm the judgment.

FOURT, Justice.

WHITE, P. J., concurs.

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