¶1(dissenting):
¶2T have no question but that Ellison was constitutionally indicted in Braxton; but I do not agree to the reversal of the judgment for failure of the indictment to state that he counseled in Calhoun County the act.
¶3As shown in Judge McWhorter's opinion, in statute law, the accessory commits his crime in the county where the principal commits his crime. He may begin his criminality in Calhoun but it is going on, continuing until the felony is done, and the accessory’s incitement is, in law, just as much active and operative upon the principal where he steals the horse as when he in Calhoun gave that incitement. Hence, when the incitement charges the act of larceny as done in Braxton, it follows that the accessory’s inducement was also there. It is, in legal view, charged as given there. Where the indictment “is one against both principal and accessory, as is this one, the whole indictment constitutes only one county.” 2 Bish. Cr. Pro. 35; 1 Id. s. 467. Therefore, when the indictment says that McCune and Stalnaker *78stole the horse in Braxton it legally says Ellison counseled them in that county to do so.
¶4The passage cited by Judge McWhorter from 10 Ency. Pl. & Pr. 526 means that where you may prosecute in either of two counties, you must lay venue — venue, I say— in the county you select, and has no reference to the commission of the act.
¶5The case of Connor v. State, 29 Fla. 455, did not involve our question. The indictment did not show where the obtaining the money was. Where one steals in one county and carries the goods to another, you need not set out in the indictment that he stole in one and carried to another county, but simply state that he stole in the county of the indictment, because in law his offense is there. See note 2, 10 Ency. Pl. & Pr. 526.
¶6So, where one in Calhoun counsels a larceny in Braxton it need not be stated that the counseling was in Calhoun, but it should be alleged as in Braxton, as it is in this indictment. If charged in Braxton could you not prove the procuring in Calhoun ? That is by force of our statute allowing the prosecution in Braxton or Calhoun. The practice is to indict principal and accessory to be indicted where he gave encouragement; but our statute changes this, and can we not say that it allowed the act to be charged, as under the statute it is deemed, an act in the county of actual larceny?
¶7I cannot see my way clear to a reversal on this ground. See State v. Jones, 38 La. Ann. 792, and State v. Fields, 50 La. Ann. 1239, (26 S. E. 99).