Green v. State , 2 Colo. L. Rep. 114 ( 1880 )

SOMEBYILLE, J.

The principal question involved in this case is that of sovereign jurisdiction in the matter of homicide, where the fatal shot or blow occurs in one State, and death ensues in another. The appellant Green, being under indictment, was convicted of the murder of Ephraim Thompson, and sentenced to the penitentiary for life. The evidence showed that the act of shooting, which caused the death, took place in Colbert county, Alabama, where the indictment was found and the trial occurred; and that Thompson died, within a year and a day, in the State of Georgia.

It was formerly doubted, at common law, where a blow was inflicted in one county, and death, by reason of the injury, ensued in another, whether the offense could be prosecuted in either county. — 1 East’s P. C. 361; 1 Hale’sP.C. 426. The better opinion seems to have been, however, that the jurisdiction attached in the venue where the blow was inflicted.— lb. This difficulty, as noted by Mr. Starkie, was sought to be avoided by the legal device of “ carrying the dead body back into the county where the blow'was struck; and the jury might there,” he adds, “ inquire both of the stroke and death.” — 1 Stark. Cr. PI., 2d ed., 3-4, note. It was to quiet doubts, and obviate this difficulty, that the statutes of 2d and 3d Edw. VI, ch. 24, and the later one of 2 Geo. II, ch. 21, were enacted by the British Parliament. The example has been followed by some fourteen or fifteen States of the American Union, and by our own State among others. These statutes, though different in phraseology, are similar in substance and purpose. Their manifest design seems to be, to prevent a defeat of justice in administering the law of felonious homicide and other crimes, by rendering the jurisdiction certain.

The Alabama statute, as comprised in section 4634 of the Code (1876), reads as follows: “When the commission of an offense, commenced here, is consummated, without the boundaries of this State, the offender is liable to punishment, therefor; and the jurisdiction, in such case, unless otherwise provided by law, is in the county in which the offense was commenced."

The validity of this statute is assailed, as being beyond the scope of legitimate legislative power. It may be conceded, that the laws of no nation can operate beyond its own territorial domain or jurisdiction, being local in their nature, and co-extensive only with the limits of the ..State by which they are enacted. As said by Story, J., in the case of The Apollos, 9 Wheaton, 362, “ they must always be restricted, in construction, to places and persons upon whom the legislature have authority and jurisdiction.” It is a safe principle, perhaps, to be asserted, that a crime committed in a foreign country, and in violation of the laws thereof, can not, by mere legislative fiction or construction, be constituted an offense in another country. This reasoning does not apply, . /however, to a case where a crime is perpetrated partly in one \ / State or country, and partly in another; “ provided,” as V suggested by Mr. Bishop, “ that what is done in the country A which takes jurisdiction, is a substantial act of wrong, and not merely some incidental thing, innocent in itself alone.” This principle must be subject, perhaps, to reasonable limitation. — 1 Bish. Or. Law, § 116.

We can find no case, where statutes of this character, when subjected to judicial interpretation, have been declared unconstitutional, especially where the question- arose, in a case of homicide, on an indictment in the jurisdiction where the fatal blow was given. In Commonwealth v. Parker, 2 Pick. 549, the question was raised as to the repugnancy of a similar statute of Massachusetts to the constitution. Chief-Justice Parker, discussing the power of the legislature to enact such a law, says : “ Surely an act of the legislature, which removes all doubt as to the place of trial, by designating the county in which the death happened, is, in no respect, a violation of the spirit, or even the letter, of the constitution.”

The sovereign right of States to enact jurisdictional laws of this kind, though often questioned, has been uniformly Sustained, and notably in the recent case of Hunter v. The State of New Jersey, 40 N. J. (Law Rep.) 495. There, the mortal blow was given within the jurisdiction of New Jersey, and the death of the victim occurred in Pennsylvania. It was held, that the courts of the former State had cognizance of the crime, by force of a statute not unlike our-own. So, in the States of Michigan and Missouri.—Tyler v. The People, 8 Mich. 321; Steerman v. State, 10 Mo. 503.

If, then, we consider the fatal shooting of the deceased by the appellant as the commencement merely of the crime of murder charged in the indictment, and that the death of the injured party was the consummation of the offense in Georgia, the statute, conferring jurisdiction on the Circuit Court of Colbert county, the alleged venue, was valid, and not obnoxious to. legal objection.

IWe need not rest the decision of this question, however, on this particular construction of the statute. Our view is, that the crime of murder consists in the infliction of a fatal wound, coupled with the requisite cotemporaneous intent, or design, which legally renders it felonious. The subsequent death of the injured party is a result, or sequence, rather than a constituent, elemental part of the crime. This principle is correct, we think, at least so far as affects the question of jurisdiction?)

As asserted by Patteson, J., in Rex v. Hargrave, 5 Car. & P. 170, “ the giving of the blows which caused the death, constitutes the felony.”

In Riley v. The State, 9 Humph. 646, the question was learnedly discussed by the Supreme Court of Tennessee. It was held, that the offense was committed at the place of the blow, though the death occurred elsewhere. The Tennessee statute required all criminal cases to be tried “in the county in which the offense may have been committed.” Green, J., said : “ That [the blow] alone is the act of the' party. He commits this act, and the death is only a consequence. Therefore, when the legislature enacts that the party shall be tried in the county where the offense may have been committed, they intended where the active agency of the perpetrator was employed.”

In the case of State v. Carter, 3 Dutcher, 499, it was held by the Supreme Court of New Jersey, that an indictment charging a felonious assault and battery in New York, and that the injured party came into the State of New Jersey, and there died from its effects, charged no crime against the latter State, but rather, it would seem, against the former.

The Supreme Court of California, in the case of The People v. Gill, 6 Cal. 637, decided that the crime of-murder is committed at the time when the fatal blow is struck. There, the statute had been changed between the time of the offense and the death of the victim, and provided that, upon trials for crimes committed previous to the new enactment, the offender should be tried and punished under the laws in force at the time of the commission of the crime.

These views are in harmony with the conclusions reached by the most approved text-writers on criminal jurisprudence. 1 Bisk. Or. Law, §§ 112-4L16. We conclude, then, that the crime charged against the prisoner was, irrespective of the statute, one against the peace and dignity of the State oí Alabama, and properly Within the jurisdiction of the courts of this commonwealth.

The appellant, by his counsel, further objects, that the dying declarations of Ephraim Thompson, as testified to by Lucius Thompson, are inadmissible. It is urged that they are mere hearsay evidence, and their admission to the jury is repugnant to that clause in section 7 of the Declaration of Bights, which gives the accused the right, when on trial, to be “ confronted by the witnesses against him.” — Const. (1875), Art., I., § 7. It is not insisted that the declarations are otherwise objectionable, as not coming within the usual rule. They were uttered under a clear conviction of impending death, and had reference only to circumstances immediately attending the crime, and relating to the identity of the perpetrator. — 1 Greenl. Ev. 156 ; 1 Whart. Am. Crim. Law, §§ 670-71; Walker v. State, 52 Ala. 192.

This is the first time the question raised ha\s been presented for the decision of this court. Eor more tkan a half-century, dying declarations have been regardedN as legal and admissible evidence, and the constitutionality of such testimony has gone unchallenged by the bar, and unquestioned by the judiciary of this State. The fallacy 'of the objection consists in the supposition, that the deceased person, whose dying declarations are proved, is the witness in the case. The witness, by whom the accused has a right to be confronted, is the one who testifies to the truth of such declarations. Lucius Thompson, not the deceased, is the witness in this case. No proposition is plainer, than that this clause in the Declaration of Bights was not designed to proclaim any novel principle.. It is but the repetition of an ancient and well-established principle of the common law. It was never construed in England, whence, with our great system of common-law jurisprudence, it was derived, to exclude such evidence as was crystallized into that system, and recognized as a vital part of it, upon wise principles of policy, expediency, or necessity.

The 6th article of the amendments to the Constitution of the United States is in the same language as the clause under discussion in our Declaration of Bights, and so it is, perhaps, embodied in the various constitutions of all the American States. We know of no case where this species of evidence has ever been held to contravene these several clauses of the various State Constitutions, or that of the Federal Government. The decisions, however, are numerous to the contrary. Campbell v. State, 11 Georgia, 355; Woodsides v. State, 2 How. (Miss.) 655; Anthony v. State, 1 Meigs (Tenn.) 265; Robbins v. State, 8 Ohio St. R. [N. S.] 131; State v. Nash, 7 Iowa, 347; 1 Whart. Am. Crim. Law, § 669.

In view of the importance of this case, we have seen fit to consider the questions1 raised somewhat at length, although the record fails tq show that the charge asked by defendant was in writing, and it is not error for the court below to refuse charges requested unless they are in writing. — Code (1876), § 3109; Jacobson v. State, 55 Ala. 151.

We see no error in the rulings of the Circuit Court, and the judgment is hereby affirmed.