Archer v. State

Citation7 N.E. 225,106 Ind. 426
Decision Date24 May 1886
Docket Number13,114
PartiesArcher v. The State
CourtIndiana Supreme Court

From the Martin Circuit Court.

Judgment affirmed.

E Moser and H. Q. Houghton, for appellant.

F. T Hord, Attorney General, H. McCormick, Prosecuting Attorney and W. B. Hord, for the State.


Elliott, J.

The appellant was jointly indicted with eight others for the murder of Samuel A. Bunch. The State elected to try the appellant separately, and the trial resulted in a judgment declaring him guilty of murder in the first degree and adjudging that he suffer the penalty of death. The indictment was returned by the grand jury of Martin county, the trial was had in that county, and judgment was there pronounced.

The facts as we gather them from the evidence are these: Martin Archer, a kinsman of the appellant and of five of the persons indicted with him, was killed, as they believed, by Samuel Marley. Marley fled the country shortly after the death of Martin Archer, but the appellant and his kinsmen believed that Bunch, the deceased, harbored him and assisted him to escape. They watched the house of Bunch for several days and nights and received information which led them to believe that he had assisted Marley to flee, and this excited in them angry and revengeful feelings. They ascertained that Bunch, on the afternoon before his death, had gone to a secluded place to secure some of his hogs which had broken into the field of a neighbor named Ryan. They there forcibly seized and bound him with hickory withes. The place where he was seized and bound was in Martin county; he was detained at this place for some hours and then taken to a cave in Orange county called "Saltpeter Cave." This cave was about two miles distant from the Martin county line. The men who captured and bound him were armed with guns and pistols, and with these in hand and ready for instant use, they took him to the cave, where they shot him many times, each emptying the contents of his gun or pistol into his body. His body was left lying in the cave for some days when it was taken out and burned. From these circumstances, and from the declarations of the appellant and those who united with him in the murder of Bunch, it is evident that the capture was made pursuant to a preconceived plan to take his life. This conclusion is fully warranted by the evidence, and is undoubtedly that reached by the jury. The circumstances unite with great strength in proof of the fact that the seizure and binding of the deceased were part of a previously arranged plan, and that the appellant, with at least four others, joined in arranging and executing this plan. It is true that Lynch, who was present and assisted in killing Bunch in the cave, testified, when called as a witness by the State, that the purpose to kill the captive was not communicated to him until the cave was reached, but, nevertheless, the circumstances conclusively prove that the capture was made with the intention and purpose of taking the life of the captured man. Forcibly seizing and binding a man without legal excuse or justification, is an assault, and, if done for the purpose of carrying into execution a preconceived plan to murder the person so seized and bound, is an initial step in the crime. An assault is an element in the crime of murder, and the assault first made in this instance constituted an important step in the crime, for it kept the victim within the power of his captors until the cave was reached on the night of his death.

The crime which culminated in the death of Bunch in the cave in Orange county was a single one, although composed of several elements, and the acts done in Martin county were not distinct criminal acts, but were parts of one crime consummated in the adjoining county. Suppose, for the sake of illustration, that a man is seized, bound and gagged in one county pursuant to a preconcerted plan; that, while he is thus helpless, he is taken to a cave in another county and there left to die, would it be doubted that the first act, the seizure and binding, was but a part of the crime of murder? There is no difference in principle between the supposed case and the real one, for, if the act is a material part of the crime, then, no matter where death results, the place of the crime, according to the weight of authority is, at common law, in the county where the first material act was committed. There is some conflict in the old common law authorities as to whether the jurisdiction is in the courts of the place where death occurred or in those of the place where the fatal blow was given, and in order to remove all doubt the body was sometimes taken to the county where the blow was struck. Riley v. State, 9 Humph. 646; People v. Gill, 6 Cal. 637; State v. Gessert, 21 Minn. 369; Commonwealth v. Macloon, 101 Mass. 1; Commonwealth v. Parker, 2 Pick. 550; Tyler v. People, 8 Mich. 320; Green v. State, 66 Ala. 40 (41 Am. R. 744); Steerman v. State, 10 Mo. 503; Hunter v. State, 40 N.J. 495.

If, however, the crime was committed in part in one county and consummated in another, jurisdiction, at common law, would seem to be in the county where the first material step in the crime was taken. Mr. Bishop says: "In reason and according to the better authorities, when a crime is really committed a part in one county and part in another, the tribunals of either may properly punish it; provided that what is done in the county which takes the jurisdiction is a substantial act of wrong, and not merely some incidental thing, innocent in itself alone." 1 Bishop Crim. Law (7th ed.), section 116. There was not only preparation in Martin county to commit the specific crime finally consummated in Orange, but there was an overt act forming a material part of the crime committed in the former county, and the parties would be indictable at common law in that county. Dynamiting and Extra-Territorial Crime, 6 Crim. Law. Mag. 155.

The acts done by the appellant and his associates were, we repeat, part of the crime; they were material, and they were substantial wrongs, so that it would seem that, even at common law, jurisdiction would vest in the county where those acts were committed. We are not, however, to decide this case upon the rules of the common law, but upon the provisions of our statute, which read thus: "When a public offence has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offence occur in two or more counties, the jurisdiction is in either county." Section 1580, R. S. 1881.

The case before us comes within this statute, for the purpose to kill was formed in Martin county, the seizure and binding of the deceased took place there, the plan of carrying it into execution was there resolved upon, and was there so far executed as to deprive the deceased of his liberty and bring him within the power of those who designed to slay him. These were acts of a criminal character, constituting a part of the offence. Not only were they acts constituting a part of the crime, but they were also acts "requisite to the consummation of the offence," for it was the seizure of the deceased, and the power obtained over him by that seizure, that enabled the appellant and his associates to conduct him to the cave in Orange county, and there kill him. If it had not been for the capture in Martin county, the enemies of Bunch could not have taken him to the place where he met his death at their hands, and it was, therefore, the unlawful seizure that enabled them to consummate the crime of murder according to the plan conceived by them. The capture in Martin county was as material to the consummation of the crime as almost any other step taken by the criminals, since it was the act which made it possible for them to take him to the place selected for slaying him. It was the act which put him in their power, and enabled them to take him from the county where he lived to the place chosen in another county, and there take his life, for, if the capture had not been effected, the felonious purpose must have been consummated, if at all, in the county of which he was a resident.

In construing and sustaining the validity of a statute similar to ours, it was said by the Supreme Court of Alabama, that: "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 person was the consummation of the offence in Georgia, the statute, conferring jurisdiction on the circuit court of Colbert county, the alleged venue was valid, and not obnoxious to legal objections." Green v. State, supra. So, here, if we consider the seizure and binding of the deceased as the commencement of the crime, the case is within the statute, but, here, we have the further element that the criminal assault upon the person of the deceased was essential to the consummation of the crime in the cave in Orange county, to which he was carried a captive by those who slew him.

If it be true that the unlawful seizure of the deceased in Martin county was part of the crime, then the constitutionality of the statute is clear, for there is no substantial diversity of opinion as to the power of the Legislature...

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