Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1826-05-25

Justice Savage, but the Chlef Justice Deing OF
opinion that sufficient time had not elapsed 10
enable the executive of Tennessee to demand
the prisoner, refused 10 discharge him. Soon
after paragraph appeared IN Nashville pa
per Of the l4th of April, announcing the fact
that Smith had been arrested in this city and
committed to prison on the very charge OF steal
ing Ogden's money A petition was thereup-
on presented to his honor Judge Duer, sitting
as Court Of Equity, praying the allowanc OF
habeas corpus for the prisoner, and which the
Judge was pleased to award accordingly. On
this witt Of habeas corpus he was brought be-
fore Judge Duer, who remanded him until
Wednesday the 18th instant. On that occasion
Mr.. ]. E. Love,t appeared and insisted ON fur
ther delay and Mr. ]. v N Yates urged his dis
charge. On the 18th the prisoner was again
brought up before Judge Duer, when his counsel
urged his discharge upon two grounds. LIST. That
the warrant of commitment did not shew
with sufficient certainty the commission OF
any felony whatever; and 2dly. That sufh-
Gent time had elapsed TO allow regular de-
mand to have been made Of the prisoner by
the Governor of Tennessee. Mr.. E. Living
sion, District Attorney of Albany county, APP
peared to oppose the discharge Of the prisoner,
and insisted that sufficient time had not elapsed
and that further delay ought to be granted 10
allow the executive Of Tennessee to demand
the prisoner as fugitive from justice. The
Judge, however, decided that with respect to
time, it appeared to him that sufficient had
elapsed, and that on that ground, the prisoner
ought no longer to be detained in custody
Mr.. Livingston then insisted that as the prison.
err might be tried in the City Of Ae,o York for
this offence, (he having brought The bills al
legged to have been stolen into that city, he
therefore ought to be detained in custody to
enable grand Jury in that city to indict him,
and that it was not necessary to send the prl-
soner TO Tennessee for trial.
In support of this position, he cited Massa.
Rep. l6, . Massa. Rep ID, where it had been
expressly decided BY the supreme court Of Mas
sachusetts, that stealing goods in another state
and bringing them into that state, subjected the
offender 10 trial and punishment in Massachu-
setts-tha, in the last cited Case, Parker, JUS
tice said that upon principle it appeared to
him that the common law doctrine respecting
goods being stolen in one county and carried
into another county, might well be extended by
analogy to the case of states, united as the
states are under one general government. He
| also cited Chitty's Criminal Law, l2l, to
shew that the legal possession Of goods always
| remains in the true owner, and that every mo-
ment's continuance Of the trespass and felony,
amounted in legal consideration, to a neW cap
tion and asportaiion.
In opposition to these cases and the argu-
men,s thevupon, Mr.. Yates, the prisoners
counsel, urged that the counsel on the other
side had proved too much from the doctrine
laid down in Chitty; for if every moments con-
e tLa f.In Pd IN,
nev caption and nsportniion, or in other words
to new felony, wha, could prevent the prison.
er from being tried and punished in every coun-
| ty in,o which he may have carried the stolen
property? This certainly was not the correct
doctrine The prisoner might be tried either
in the county where he took the goods, or in
that into which he carried them, but, clearly,
not in both In such cases too, record of con-
viction in one county was bar 10 trial in dnO-
Their, but how could trial or conviction in this
state be pleaded in bar to trial or conviction
| in the state of Tennessee, both being sovereign
and independent states? The decisions cited
| from the Massachusetts, Reports were not law,
at least in this stare, being in direct opposition
to decision made by the Sup. Court OF the state
of N. York, in . Johnson's Rep. 447, the People
.. Gardner.-That in that case it appeared that
1dTQOcT DlQ StOlCU d uOISc III CIiloht, anu
had brought him into Washington county in
this state; yet the court clearly held, that he
could only be tried for the offence in Vermont
and not in this state.-That the same principle
was also deducible from the English cases-ln
| | Hawk. go, and Sd Inst. US, il was held that
if private rob on the high seas, and bring the
stolen property into any county in England, yet
that the common law courts could moi try the
offender, because The first original taking OF the
goods was out of the reach Of The common nw
courts, as jurisdiction of the offence appertaned
to the admiralty courts exclusively. So too in
"a John. Rep. $40, it was held that the courts
Of this state will not enforce the criminal laws
of another state, and in Governs Rep 53l, in
note, it is said that the Legislature OF one state
cannot define and punish crimes committed in
another state:-And Tayl. Rep IS, the State r.
gainst Knight is cited in support OF this doctrine
In Wheeler's cases, AIS, the general prln-
| ciples applicable to this question are examined
by Chancellor Kent, and in Chit,y's Criminal
Law, Is, s., 46; and 4 Taunt. "a, it appears
that though the English Courts will cause an
offender to be arrested and delivered over 10 the
Government of the country where the offence IS
committed; yet they never supposed they could
themselves, under any circumstances, entertain
jurisdiction of the offences and Try the offender
Besides, as the Constitution OF the United
States made ample provision for demanding H.
gilives from justice, there was no necessity oil
taking jurisdiction By implication in this state,
1 i