Coleman v. State

• Citation: 83 Miss. 290,35 So. 937
• Court: United States State Supreme Court of Mississippi
• Decision Date: 15 February 1904
• Parties: PHILIP COLEMAN v. STATE OF MISSISSIPPI

35 So. 937

83 Miss. 290

PHILIP COLEMAN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 15, 1904

October 1903

FROM the circuit court of, second district, Coahoma county. HON SAMUEL C. COOK, Judge.

Coleman appellant, was indicted, tried, and convicted of the murder of Ella Coleman, his wife, and sentenced to the penitentiary for life, from which conviction and sentence he appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Denton & Cox, for appellant.

The offense charged in the indictment in this case was committed "partly in one county and partly in another." The mortal blow was struck in Coahoma county and death resulted therefrom in Quitman county. Appellant was first indicted in Quitman county, and the circuit court of Quitman county therefore obtained exclusive jurisdiction of the case. Code 1892, § 1334, 12 Enc. P. & P., 151. It was not proper to nolle pros the indictment in Quitman county for the sole purpose of obtaining a change of venue on behalf of the state from Quitman county to Coahoma county, as alleged in the plea in abatement and admitted by the demurrer thereto. State v. Pauley, 12 Wis. 537. Section 1335 of our code, if constitutional, was certainly not intended to give the prosecution, in a case of this kind, leave to play battle-door and shuttle-cock with defendant's constitutional rights.

The indictment in this case alleges that the murder was committed in the second district of Coahoma county. It was, therefore, improper to admit testimony showing that the mortal blow only was delivered in Coahoma county, and that the death resulted therefrom in Quitman county. The venue should have been laid according to the facts. 10 Enc. P. & P., 526; People v. Scott, 74 Cal. 95; citing and approving, Hoskins v. People, 16 N.Y. 344; Clark's Criminal Procedure, 251; Bishop's Criminal Procedure, sec. 381, 3d ed.; Norris v. State, 33 Miss. 373; Watson v. State, 36 Miss. 593; Johnson v. State, 47 Miss. 671.

J. W. Cutrer, on same side.

Under the common law, where the blow was struck in one county or jurisdiction and the death happened in another, while it has been held by some courts, in order that there might not be a failure of justice, that jurisdiction to try the offense was vested in the court where the death occurred, Chief Justice Sharkey states the conclusion of this, court upon that point as follows:

"The better opinion seems to have been that by the common law when the blow was given in one county and the death happened in another, the offender was not indictable in either." Stoughton v. State, 13 Smed. & M., 255.

In that state of the law, the legislature enacted a statute conferring jurisdiction upon the court where the death happened. in the case of Stoughton the defendant was tried in Perry county, in which the fatal blow was struck, but it was proven on the trial that death resulted in Harrison county. from a judgment of conviction Stoughton appealed, and the court held that "If it could be clearly shown that he was triable there (in Perry county) by the common law, perhaps the statute might be regarded as giving the additional power to try him in the county where the death happened, without interfering, with the jurisdiction as at the common law. But as the question was, to say the least of it, doubtful at common law, the statute must be regarded as the only law on the subject." Riggs v. State, 4 Cush. (26 Miss.), 51; Turner v. State, 6 Cush. (28 Miss.), 684.

Neither the courts of Coahoma or Quitman counties had jurisdiction, except by force of Code 1892, § 1335, which gave jurisdiction to the courts of either county.

It is necessary that venue should be laid with absolute certainty and that the particular offense charged must be stated with precision, and every material circumstance in regard to place must be averred with that degree of certainty which is sufficient to exclude intendment. Riggs v. State, 4 Cush. (26 Miss.), 51; Turner v. State, 6 Cush. (28 Miss.), 684.

If the statute, Code 1892, § 1335, was intended to permit an accused to be indicted for a murder committed in one county, and thereupon to be tried for murder committed in another county, or committed partly in one county and partly in another, it is not constitutional.

The statute, however, was not intended to have any such effect, and it must be held that when it is sought to charge an accused with a crime for which he is triable as provided by the statute, the indictment against him must state with particularity and precision the facts which give the court jurisdiction, otherwise the court is not able to proceed because of a variance between the indictment and the proof. Norris v. State, 33 Miss. 373.

This court has repeated the declaration that the courts of each county have jurisdiction only of offenses committed completely within their territory. Watson v. State, 36 Miss. 606; Johnson v. State, 47 Miss. 671.

The requirement that the facts which give the court jurisdiction must be stated where the jurisdiction is special or statutory and not vested in the court by common law is maintained in the following cases: People v. Haskins, 16 N.Y. 344; People v. Scott, 74 Cal. 95; Connor v. State, 29 Fla. 455; People v. Davis, 56 N.Y. 99; Commonwealth v. Gillon, 2 Allen (Mass.), 502; State v. Robinson, 14 Minn. 447; People v. Dougherty, 7 Cal. 398; Chivvarrio v. State, 15 Tex. App., 413; Miles v. State, 23 Tex.App. 413; State v. Fish, 4 Ired. L. (N. C.), 220; State v. Pugsley, 75 Iowa 742.

J. N. Flowers, assistant attorney general, for appellee.

The most serious question in this case is presented by the plea in abatement and the demurrer thereto. Under § 1335 of the code, Coahoma county or Quitman county had jurisdiction of this crime originally, but the question is whether Quitman county, having first assumed jurisdiction, did not then have it exclusively, for all purposes and to the end.

The Iowa court held in Ex Parte Baldwin, 69 Iowa 502, that the court which first obtains jurisdiction of the person of the accused retains it to the end, to the exclusion of the court of the other county, although he might have first been indicted in the other county. See also cases cited in notes to Weller v. Sternberg, 5 L. R. A., 221.

But the issue here is not between the two courts. The Quitman county court had voluntarily relinquished its jurisdiction before the Coahoma county court assumed it. The reason of the rule fails in this case. There was no indictment against this accused in Quitman county pending at the time he was indicted in Coahoma. The rule extends only to the right of one court to retain jurisdiction first assumed.It is a right which the court can relinquish if it sees proper.

Section 1334 of the code does not cover the case provided for in § 1335, and the last clause of the former section fixing the jurisdiction in the county where prosecution shall be first begun does not govern in cases provided for by § 1335. We submit that our statute giving the courts of both counties jurisdiction where the mortal blow is struck in one county and the death occurs in another is to be construed just as if it provided in express terms that the crime shall be held to have been committed in either of the counties assuming jurisdiction of the offense. It seems that this indictment would be good without the aid of § 1335, because the general rule is that the crime is committed in the jurisdiction where the mortal blow was given. 1 Bishop Crim. Procedure, 35.

OPINION

TRULY, J.

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 Quitman, said Ella Coleman, as the result of such shot, died. On the 7th 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 he had 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 vested 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...