Coleman v. State , 83 Miss. 290 ( 1903 )

Teuly., J.,

delivered the opinion of the court.

On the 20th day of October, 1900, in the county of Coahoma, appellant shot his wife, Ella Coleman, under circumstances not necessary to be detailed here, as the decision turns upon another point. On the 21st of October, 1900, in the county of Quit-man, said Ella Coleman, as the result of such shot, died. On the Ith of March, 1901, in the county of Quitman, appellant, by the grand jury of that county, was indicted for manslaughter on account of the killing of said Ella Coleman; and as to this indictment, at the September term of the circuit court of said Quitman county, after appellant was arrested, had been arraigned, and pleaded “Not guilty,” a nolle prosequi was entered by the district attorney, with consent of the court. On the 25th of November, 1901, appellant was by the grand jury of the county of Coahoma indicted for the murder of said Ella Coleman. The case coming on for trial at the 'April term of the circuit court of said Coahoma county, appellant demurred to the indictment, and, this being overruled, filed a plea in abatement, setting up among other grounds the fact that be bad once been indicted for said homicide by a court of competent jurisdiction in the county of Quitman, and by such indictment and subsequent proceedings the jurisdiction was - Tested in the county of Quitman, and that the entering of the nolle prosequi in that county, and the subsequent indictment for the same homicide in the court of another county, was, in effect, to obtain for the state a change of venue, which is not permitted by law, and that this was the real purpose and object of the dismissal of the prosecution in the county of Quitman. The demurrer of the state to this plea was sustained. During the progress of the trial appellant objected to proof of the death of Ella Coleman as having occurred in the county of Quitman, on the ground that such proof was at variance with the indictment. The indictment in question was in the statutory form, and charged that the murder-occurred in the second district of Coahoma county. This objection was by the court overruled, and the trial proceeded, resulting in the conviction of the appellant, and his being sentenced to the penitentiary for life; and from that judgment he appeals, assigning numerous causes of error.

We think the demurrer to the indictment was properly overruled. The indictment was plainly and accurately drawn, and. charged explicitly the commission of the offense in the second district of Coahoma county. Code 1892, § 1356.

We are of the opinion that the objection to the testimony in reference to the place of death was properly overruled. This did not constitute a variance between the proof and the indictment. It is true that in Stoughton's Case, 13 Smed. & M., 255, it was held that the party could only he. tried for murder in the county where the death happened, but this was on account of the statute as it then existed (Poindexter’s Code, p. 314, c. ,56), the terms of which required that the prosecution for the murder should be in the county where the death occurred; but that case has no application here. The cases of Riggs v. State, 4 Cush. (26 Miss.), 54, and Turner v. State, Cush. (28 Miss.), 686, were decided while the same statute was in force, and accordingly it was held that the indictment must charge that the death occurred in the county where the indictment was preferred. Under the law as it then was, the indictment must have charged, and the evidence must have shown, that the death actually occurred in the county where the indictment was found. The jurisdiction of the. court to try the cause was dependent upon the existence and proof of this fact. But this rule has been changed, and the difficulty avoided, by legislation. This is no relaxation of the rule requiring that the facts which constitute the offense charged must be definitely and precisely stated, and that the indictment must contain with certainty every material allegation necessary to show the commission of a complete offense within the jurisdiction of the court in which the indictment-is presented. The indictment in the instant case complies with this requirement of the law. The facts constituting the crime charged, its commission within the jurisdiction vested by law in'the court, and the nature and cause of the accusation against the defendant, are all averred with certainty and precision.

By § 1335, Code 1892, it is specially provided that where the “fatal blow” is struck in one county, and death occurs in another, the offender may be indicted and tried in either county. Therefore, as, by virtue of the statute, the circuit court of either county is vested with jurisdiction to try the offender, the indictment need only aver the commission of the offense within the jurisdiction of the court where the indictment is found, and it is not essential to charge in the indictment all the attendant circumstances of the homicide. The only reason for the setting out of the venue in the indictment is to show that the court is clothed with jurisdiction over the crime and its prosecution.

Under similar statutes enacted to abrogate or relax the technical rules of criminal pleading in force and adhered to under the common law, the great weight of the more modern, and, in our judgment, sounder-reasoned, authorities, assume the position that it is not necessary to aver more in the indictment than wbat is sufficient to show tbe jurisdiction of tbe trial court, and advise tbe defendant of tbe nature and cause of tbe accusation against bim with such certainty as to enable liim to plead a conviction or acquittal thereunder in bar of another prosecution for tbe same offense. So, under our code provisions, one may be indicted for homicide in either tbe county where tbe blow was inflicted, or where tbe death occurred, and tbe entire transaction may be averred as having taken place in tbe county where tbe indictment is found; and such an indictment will be sustained by proof that either tbe act was committed, or its effect occurred, in such county. McClain, Criminal Law, § 370; Johnson v. State, 47 Miss., 674; State v. Jones, 38 La. Ann., 793: Hicks v. Territory (N. M.), 30 Pac., 872.

Tbe demurrer to tbe plea in abatement should have been overruled. Section 1334, Code 1892, was designed to meet just "such a contingency as arose in tbe instant case. Under tbe common law, as construed in the Stoughton Gase, before cited, where a homicide was committed partly in one jurisdiction and partly in another, it was doubtful whether the offender could be prosecuted in either, but this is not true as the law now exists. Section 1334 provides that where an offense is committed partly in one county and partly in another, or where the, acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county where the offense was commenced, prosecuted, or consummated, “where prosecution shall be first begun.” That provision controls the case at bar. The state can begin its prosecution in any of the counties in which any of the criminal agencies operate — anywhere that any act is committed in prosecution of the criminal design — but, having chosen the tribunal before which the party accused shall stand trial, it cannot, of its own motion, divest that court of jurisdiction, and begin another prosecution before another court in another jurisdiction. Under the ancient law, under the facts disclosed by this record, the party accused could have been prosecuted in neither jurisdiction. Under existing statutes, he can be prosecuted in either, but it is not the law that he can be prosecuted in both. Therefore, the prosecution in the instant case having been first begun in the circuit court of Quitman county, the state could not divest that court of its jurisdiction, and rightfully institute another prosecution in a different county. By the terms of the statute, concurrent jurisdiction was vested in the circuit courts of both counties, and the one first attaching becomes exclusive. The trial could not, on the application of the state, have been transferred to any other county, hecause this is not permissible by law, and the method here adopted is simply an attempt to do by indirection what cannot be done directly. State v. Pauley, 12 Wis., 537; Ex parte Baldwin, 69 Iowa, 502, 29 N. W., 428; State v. Chinault, 55 Kan., 326, 40 Pac. 662; State v. Brannon (Kan. App.), 50 Pac. 986; State v. Williford, 91 N. C., 529. That § 1334 applies to the case-made by 'this record is indisputable. Here the act was committed in one county, and the effect produced in another. The crime was wholly completed in neither county, but partly in each. The mere striking of a blow is not murder. Its fatal effect must follow, to make the completed crime. To constitute murder, several essential facts must exist — among them the criminal act and its fatal effect — and these may often occur in different jurisdictions. Com. v. Parker, 2 Pick., 550; State v. Pauley, supra; Robbins v. State, 8 Ohio St., 131; Archer v. State, 106 Ind., 426, 7 N. E., 225; Ex parte McNeely (W. Va.), 14 S. E., 436, 15 L. R. A., 226, 32 Am. St. Rep., 831; State v. Jones, supra. Section 1334 providing that in all criminal cases, when the courts of different counties have concurrent jurisdiction, jurisdiction shall vest in the courts of that county “where prosecution shall be first begun,” is simply decla-torv of a well-defined and firmly established legal doctrine. It grew out of the comity of nations, and was intended to prevent conflicts between courts of concurrent jurisdiction, whether of the same or different counties or countries, and was found necessary to insure the orderly administration of the criminal laws. But it is more than a mere rule of procedure. It is a substantial and valuable right guaranteed by the law to a party accused of crime. It insures that be shall not twice be placed in jeopardy for the same offense; that he shall be forced to undergo but one trial, and shall not be harassed by repeated indictments in different courts and different jurisdictions. In Ex parte Baldwin, supra — a case of murder, where the criminal agency was placed in motion in one county, and its fatal effect occurred in another — the supreme court of Iowa says: “Jurisdiction of the crime for which defendant is indicted rests in either Van Burén or Jefferson county. Code, § 4159. It is plain that the courts of both counties cannot exercise jurisdiction by trials and judgments in the case, for the obvious reason that, if they may, defendant may be subjected to two trials and two punishments for the same offense. How shall it be determined in which county trial and punishment shall be had ? The answer is ready and simple, and discloses a rule which, while securing the punishment of criminals, will assure the accused exemption from two trials and double punishment. It is this: The court first obtaining jurisdiction of the person of the accused shall retain it, to the exclusion of the court of the other county, and shall proceed to try the case and administer justice therein. The necessity for the administration of the law on criminal matters without subjecting the accused to the peril of two trials, with the possible result of being twice convicted and punished, demands the recognition of the rule. It is in accord with the familiar rule prevailing everywhere, that, where courts have concurrent jurisdiction, the court whose jurisdiction first attaches must retain the case for final disposition. Authorities need not be cited to support this familiar elementary rule. But few cases are or can be cited announcing the rule, doubtless for the reason that it is rarely, if ever, disputed or doubted.” The fact that in the instant case there is no contest between the courts of the counties of Coahoma and Quitman doe3 not operate to vary the rule, or to deprive the appellant of Ms right to be proceeded against only by due course of law, and in the jurisdiction where the prosecution was first instituted. Any other rule would be attended with great inconvenience and possible hardship to the party accused of crime[ and would create uncertainty and confusion in the administration of the law. The officers of law cannot begin in one county a prosecution for an offense alleged to have been partly committed therein, and then, at their pleasure, dismissing that, commence another prosecution in another county, and so harass the accused by indictment and prosecution in every court vested by law with jurisdiction of the alleged offense. Such was not the intention of the law, and such a practice cannot be countenanced or permitted. The) circuit court of Quitman county, having first acquired jurisdiction of the crime with which the appellant stands charged, must maintain it throughout. The entering of the nolle prosequi in that court does not prevent the grand jury of that county, if it so chooses, from now presenting an indictment against appellant, charging him with murder in slaying of Ella Coleman.

The judgment is reversed, and the indictment and prosecution in Coahoma county quashed and abated.

We do not' consider or decide the other assignments, as they may not arise, should there be another trial of this matter.

Reversed and remanded..