Atkinson v. State

• Citation: 96 So. 310,132 Miss. 377
• Decision Date: 14 May 1923
• Docket Number: 23254,23253
• Court: United States State Supreme Court of Mississippi
• Parties: ATKINSON et al. v. STATE

96 So. 310

132 Miss. 377

ATKINSON et al. v. STATE

Nos. 23253, 23254

Supreme Court of Mississippi

May 14, 1923

1. CRIMINAL LAW. Where crime committed partly in two counties jurisdiction-in either county, but courts where prosecution first begun have right to conduct to final determination.

Under section 1406, Code of 1906 (section 1161, Hemingway's Code), when a crime is committed partly in one county and partly in another, the jurisdiction is in either county, but the courts of the county where prosecution therefor is first begun are given the right to conduct the same to final determination, and the courts of the other county are thereby deprived of the right to entertain a prosecution for said crime.

2. CRIMINAL LAW. Methods of commencing prosecutions stated.

A prosecution may be commenced within the meaning of section 1406, Code of 1906 (Hemingway's Code, section 1161), by the issuance of a warrant, or by binding over or recognizing the defendant to compel his appearance at the circuit court to answer the defense, as well as by indictment or affidavit.

3. CRIMINAL LAW. Charge against accused pending result of wound of deceased held sufficient to confer jurisdiction.

Under section 1406, Code of 1906 (Hemingway's Code, section 1161), where the fatal wound was inflicted in one county and death resulted therefrom in another county, and in the interim of the infliction of such wound and the death of the decedent the defendant was arrested and incarcerated in prison on an affidavit before a justice of the peace of the county where the wound was inflicted charging him with assault and battery with intent to kill and murder the decedent, and under section 1461, Code of 1906 (Hemingway's Code, section 1219), where the defendant was at the time of the death of the decedent being held in custody under such charge to await the result of the wound inflicted, held, that such proceeding in the county where the fatal wound was inflicted was such a beginning of a prosecution of the defendant for murder as gave the courts of said county exclusive jurisdiction to proceed with the same to final determination.

4. CRIMINAL LAW. Statute providing for trial in either county of wound or death not violative of Constitution, guaranteeing jury trial where offense committed.

Section 1407, Code of 1906 (section 1162, Hemingway's Code) providing that, where the mortal, wound or other cause of death is inflicted in one county, and death occurs in another county, the offender may be indicted and tried in either county is not violative of that clause of section 26 of the Constitution, which guarantees to a defendant charged with crime a trial before a jury of the county where the offense was committed.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Jeff Atkinson was convicted of manslaughter, and Will Atkinson was convicted of murder, and both defendants appeal. Reversed and remanded, with directions.

Reversed and remanded.

George S. Hamilton, for appellant.

Two questions are presented to the court in this case for decision: First. Does section 1407 of the Code of 1906 violate section 26 of the Constitution of Mississippi? In other words, did the trial of Will Atkinson in the circuit court of Hinds county deprive him of his constitutional right to be tried by a "jury of the county where the offense was committed?" Second. Was the prosecution of Will Atkinson first begun in Leake county?

We shall discuss the first question first. Section 26 of the Constitution provides that in all criminal prosecutions, the accused shall have a right to a trial by a "jury of the county where the offense was committed." The question in this case is, where was the crime committed? And that is a matter of fact. If the crime was committed in Leake county then the court of Hinds county had no jurisdiction.

Every crime is composed of two separate and distinct elements; namely, the criminal act and the criminal intent. Where these two elements concur, we submit the crime is there committed. The criminal act that was done was the shooting, the infliction of the mortal wound, and that took place in Leake county. The criminal intent that existed was in the mind of Will Atkinson at the time he did the shooting, and that was where he was, in Leake county.

There are a number of murder cases reported by the courts of different states, in which the mortal wound was inflicted in one state, and death resulted in another state. In many of these states there were no statutes on the subject, and it therefore became necessary for each court to determine in which state the crime was committed in order to determine the question of jurisdiction. For a state could not prosecute for murder unless the murder was committed in that state.

In this case, now before this court, if Leake county and Hinds county are considered, for the purpose of argument in this case, as constituting different states, the reasoning applicable in those cases apply equally in this case. And if those cases decided that, in the absence of statute, the crime of murder is committed in the state where the mortal wound was inflicted, and not in the state where death occurred, they constitute authority, by analogy, for the proposition that in this case the crime of murder was committed in Leake county, where the mortal wound was inflicted, and not in Hinds county, where death resulted.

And the analogy is complete and perfect. Under the constitution and laws of this state, each county, so far as crimes and criminal prosecutions are concerned, constitutes a separate and distinct jurisdiction.

In Kentucky v. Atkins, 148 Ky. 207, 146 S.W. 431, the defendant was indicted in Kentucky for the murder of the decedent by administering poison to her and also by striking her. The blow was struck and the poison was administered by the defendant in Cincinnati, Ohio. Death occurred within a year and a day in Kentucky. Thus the Kentucky court held that the murder was not committed in Kentucky, where death occurred, and that the state of Kentucky had no jurisdiction over the crime; but that it occurred in the state of Ohio, where the poison was administered and the blow struck, and that only the Ohio courts had jurisdiction.

Following the analogy, we submit that the crime of murder, in this case, was not committed in Hinds county, where death occurred, and that the circuit court of Hinds county had no jurisdiction to try the case; but that the crime was committed in Leake county, where the shooting occurred and the mortal wound was inflicted. Stout v. State, 76 Md. 317, 25 A. 299.

And the same conclusion is reached in State v. Bowen, 16 Kan. 475; Green v. State, 66 Ala. 40; State v. Kelly, 76 Me. 331; Riley v. State, 9 Humph. 646. We submit that from an examination of those cases in which a particular crime is considered as committed partly in one county and partly in another, it will appear that the active agency of the perpetrator was employed in each county.

Section 1406, Code of 1906, is the section referring to crimes committed partly in one county and partly in another. That section evidently applies to such crimes generally, but not to murder. There is a separate section, section 1407, in regard to murder. The legislature evidently considered that the first section did not cover murder, and that it was necessary to enact the second section in order to cover that crime, because murder could not be regarded as being committed partly in two counties where the wound was inflicted in one and death ensued in another. We now come to the second question, presented to this court for decision, which we consider equally, if not the more important of the two. If the court should be of the opinion that the crime of murder is committed partly in each county where the wound is inflicted in one county and death ensues in another, then we submit that under section 1406, Code of 1906, prosecution was first begun in Leake county, and therefore that Leake county alone has jurisdiction.

We wish to call the court's attention to the following sections of the Code of 1906 (section 1461); section 2753 (section 1415). It was then agreed between the county prosecuting attorney of Leake county and Mr. James Crawley, attorney for Will and Jeff Atkinson, that these cases then pending before the justice of the peace should stand continued until it could be determined whether Joe Owen was going to recover or die. Meanwhile the injured party was brought to Jackson, in Hinds county, to a hospital here for treatment, and while here, later died. The night of his death affidavits were made against Will and Jeff Atkinson before a justice of the peace of Hinds county charging them with murder, while the cases were still pending before the justice of the peace in Leake county. After the affidavits had been made in Hinds county, the prosecuting attorney of Leake county directed the justice of the peace there to dismiss the charges there, without notice to the attorney for Will and Jeff Atkinson. State v. Hughes, 51 So. 464, 96 Miss. 581, is such an important case that we wish to call it to the special attention of the court.

The question in this case was practically settled by the case of Coleman v. State, 83 Miss. 290, 35 So. 837, 64 L. R A. 807. In this case, the affidavit was made in Leake county before a justice of the peace there, a warrant was issued thereon, and Atkinson was taken and held in custody by the Leake county sheriff. What is a prosecution and what is meant by the word? Black's Law Dictionary defines it as follows. "Prosecution. In criminal law, a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of...