Bottom v. State
| Decision Date | 09 October 1922 |
| Docket Number | 174 |
| Citation | 244 S.W. 334,155 Ark. 113 |
| Parties | BOTTOM v. STATE |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.
Judgment affirmed. Rehearing denied.
R M. Hutchins, for appellant.
J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
OPINION
The grand jury of White County returned an indictment against appellant on July 17, 1922, charging him with the crime of murder in the first degree, alleged to have been committed in that county by killing one Harry Benning by shooting him with a pistol, and on the trial of the case he was convicted by the jury and his punishment was fixed at life imprisonment. An appeal has been prosecuted to this court, and the only assignment of error urged here is that the court erred in overruling the motion to quash the indictment.
The motion which appellant filed before the commencement of the trial alleged that the killing of Benning occurred on a barge in White River at a place where it constituted the boundary between White and Woodruff counties, and that prior to the returning of the indictment by the grand jury in White County appellant had been arrested in Woodruff County upon a warrant issued by a justice of the peace of that county, that he had been incarcerated in jail awaiting the action of the grand jury of Woodruff County until he was admitted to bail by an order of the chancery court of Woodruff County, and that at the time of the finding of the indictment and of the filing of the motion appellant was under bond for appearance in the Woodruff Circuit Court.
On the trial of the motion it was admitted by the State, as well as by the accused, that the killing of Benning occurred on a barge in White River which was anchored or tied by a rope to the White County bank of the river. The court overruled the motion and proceeded to trial of the case.
Appellant relies upon the statute which provides that where a river is the boundary between two counties, "the criminal jurisdiction of each county shall embrace offenses committed on the river" (Crawford & Moses' Digest, sec. 2874), and that when two or more counties, under the provision mentioned, have jurisdiction of the same offense, "the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other." Crawford & Moses' Digest, sec. 2878. The contention is that, pursuant to the terms of this statute, there was concurrent jurisdiction in the two courts, but that exclusive jurisdiction was obtained by the courts in Woodruff County upon the arrest of appellant.
The first contention of the State in avoidance of the effect of the statute is that, according to the undisputed testimony, the killing of Benning occurred on a boat attached to the west bank of the river, which was the White County side of the river, and that, there being no uncertainty as to the location of the place of the killing, and the boundaries of the county being certain, it would be an invasion of the constitutional right of an accused person to attempt to confer jurisdiction on a county which did not embrace in its territory the particular spot where the crime was committed. The Attorney General relies upon that provision of the Constitution (art. 2, sec. 10), which provides that in criminal prosecutions "the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime was committed."
The territorial statute enacted in the year 1835 creating the counties of White and Woodruff made the middle of the main channel of White River the line between the two counties, and courts take judicial knowledge of the boundary lines of counties as fixed by statute. Bittle v. Stuart, 34 Ark. 224. Notwithstanding this statute and the constitutional provision similar to the one quoted above, this court, in the case of State v. Rhoda, 23 Ark. 156, upheld the statute which provides that when any offense may be committed on the boundary of two counties, the indictment may be found and trial and conviction had in either of such counties. Crawford & Moses' Digest, sec. 2869. The doctrine of that case was followed in the case of Dougan v. State, 30 Ark. 41.
Now, if the Legislature could pass a statute conferring criminal jurisdiction on either county where the offense was committed on the line, it could also provide, where the line was a shifting one, such as the channel of a stream of water, that the whole of the body of water should constitute the line for the purpose of conferring criminal jurisdiction. Such is the effect of the statute now under consideration. It makes the whole of White River the boundary line for the purpose of exercising criminal jurisdiction, and an offense committed on any part of the river is, within the meaning of the statute, on the boundary line, and the courts of both counties have concurrent jurisdiction. We have held, in passing upon statutes conferring concurrent jurisdiction on the waters of streams forming the boundary line between this and other States, that such statutes are valid exercises of the legislative power. Brown v. State, 109 Ark. 373, 159 S.W. 1132; Means v. State, 118 Ark. 362, 176 S.W. 309; Goodman v. State, 153 Ark. 560, 240 S.W. 735. The same principles declared in those cases are controlling in determining the validity of the statute now under consideration. We cannot see any difference in principle in the power of the Legislature to fix concurrent jurisdiction on the waters of such a stream.
The State relies on Cox v. State, 68 Ark. 462, where the court held that the jurisdiction over an offense committed on a stream which was the boundary line of two counties was vested in the county on whose side of the center of the channel the offense was committed. That decision ignored altogether the statute now under consideration. Nothing was said about the statute in the opinion. That decision, however, is in conflict with the principles announced in the later cases cited above and to which we now adhere.
It is also contended on the part of the State that the statute does not apply to cases where the offense occurred on permanent objects or structures in the channel of the stream, and it is contended that in this instance the offense was committed on a boat which constituted such a permanent structure as a fixture to the bank. The Goodman case, supra, is relied on as supporting that contention, as in that case we held that the statute had no application to an island in the channel of the river. We do not think, however, that the boat fastened to the bank by ropes constituted a permanent fixture to the bank so as to make it a part of the shore line. We are therefore of the opinion that the statute is valid and applies in the present instance so as to confer jurisdiction upon the courts of either of the adjoining counties.
It does not follow, however, that the jurisdiction of the Woodruff court became exclusive so as to prevent the exercise of jurisdiction by the circuit court of White County. The statute provides, it is true, that "the county in which the defendant is first arrested shall proceed to try the offense, to the exclusion of the others," but this does not confer an unending jurisdiction in the county where the arrest is first made, for when the proceedings in that county come to an end short of a final judgment, the jurisdiction again becomes concurrent instead of exclusive, and the prosecution may be made in either county. The State has the right to elect in which county the offense may be prosecuted where the jurisdiction is concurrent under the statute, and until the final judgment, which operates as a bar to further prosecution in either county, the State's right of selection of the forum continues.
The finding of a new indictment and its acceptance by the court in White County was tantamount to an abandonment of the prosecution in Woodruff County and ended the exclusive jurisdiction of the courts in that county. This principle was clearly recognized by this court in the case of Elmore v. State, 45 Ark....
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