A horse stolen in one State or Territory and carried into another, will not make it a felony in the latter State. A special verdict which states the feldnious taking in one State, and the taking continued in» to another, cannot be supported as a felonious taking in the latter.
Indictment for stealing a horse in the county of Burke; The jury found specially that the felony was committed in the Territory South of the Ohio, and that the trespass •was continued info this State, where he. was taken. The Attorney-General cited Hale’s PL Cr. 507,508. and Haw, P* C. 90. and he issisted, that as the asportation into another county, is in law a new taking in this latter county $ so a taking out of this State, and an asportation into it, is a new taking here — and so the prisoner is guilty of felony here : tie cited a case which he had from the information of Mr. Avery, who was now present and affirmed if, that while he was Attorney-General, a man was tried at Hillsborough, who had stolen a horse in the county of Mecklenburg, in Yirginia, and brought it into this State •, and this appearing upon evidence, a doubt was conceived, whether he was guilty of felony against the, law of this State $ but H. H. P. C. being cited and ¡relied upon, the court upon deliberation were of opinion, it was a felony punishable by the laws of this State-*117ami the man was hanged : but per Judge Jlshc, if this man were, tried and condemned here, or tried and acquitted here, would the sentence of this court be plead-able in bar to an indictment preferred against him in the Territory South of the Ohio ? 1 think it would not; because the offence against the laws of this State, and the offence against the Ians of that country, arc distinct; and satisfaction made for the offence committed against this State, is no satisfaction for the offence committed against the laws títere. The consequences then of trying this man here and condemning him, will he, that if a man steals a horse in one part of the continent, and goes with him to another, through several States, the culprit according to the several laws of each Statq, being guilty of a taking in each, may be cropped in one, branded and whipped in another, imprisoned in a third, and hanged in a fourth ; & all for one and the same offence. This is against natural justice, and therefore Í cannot believe it to be law — when a man steals in this State, and carries the thing stolen into another county, he is guilty of the the same offence, and punishable in the same degree and by the same law in the latieras in the former county, and is punishable but once; if convicted or acquitted in the latter county, he may plead autre faits convict or acquit, of the same felony before, when indicted in the former; which shews that the law considers the felony that was committed in the first, otherwise it could not be pleaded as the same in the case before mentioned. — * Now if the felony in (his State, is the same felony that was committed in the Territory South of the Ohio, then it is a felony against the laws of the Territory, and punishable there by pillory, branding and whipping, and not by death. It would be strange then to say, he should be punished here with death, for an offence against the laws of another State, which punishes only with infamy.— This is my opinion, upon the reason of the case as it now occurs to me, and I am confirmed in it by looking into Hawkins Pleas of the Crown, w here after stating the same doctrine as it is stated in H. II. P. C. relative to the asportation being a new taking, he says, but if a piracy be committed on the sea, and the goods be brought to land, the pirate cannot be indicted as a felon, because tiie original felony was not within the cognizance of the common law — and why ? Because not committed within the extent of those limits that arc subject to the law of *118So here this offence has not been committed within the territory subject to the. laws of this State, and therefore the prisoner is not liable to be punished by these laws: I think we cannot pass judgment upon him, however worthy he may be of death. I cannot remember the case cited byJlfr. «9very, and I think he must be mistaken. Also for another reason we cannot pass judgment against the prisoner, this special verdict states at first that the felony was originally committed in I he Territory South of the Ohio ; then that the taking was continued into this State $ but it does not state the felonious taking to be continued into this State, and therefore we cannot say that the taking spoken of by the jury was a felonious taking, and without a felonious taking the prisoner cannot he guilty of the crime laid in the indictment.
Judge Williams
I do not remember the case cited by Mr. ¿¡very, if there was such a case it was so adjudged on account of some peculiar circumstances now forgotten : but at present I concur in omnibus with Judge Ashe.
So there was judgment for the prisoner, and he was discharged.