Ex Parte Mcneely.

• Decision Date: 06 February 1892
• Citation: 14 S.E. 436,36 W.Va. 84
• Parties: Ex parte McNeely.
• Court: West Virginia Supreme Court

14 S.E. 436

36 W.Va. 84

Ex parte McNeely.

Supreme Court of Appeals of West Virginia.

Feb. 6, 1892.

Criminal Law — Vence — Death in One State prom Wound Inflicted in Another—Constitutional Law.

1. The latter clause of section 6, c. 144, of the Code, (1891,) providing that, "if a person be stricken or poisoned out of this state, and die by reason thereof within this state, the offender shall be as guilty, and may be prosecuted and punished, as if the mortal stroke had been given, or poison administered, in the county in which the person so stricken or poisoned may so die, " is not unconstitutional or invalid.

2. Section 3 of article 3 and amendment 6 of the constitution of the United States apply to offenses against the United States and proceedings in its courts, and not to offenses against a state or proceedings therefor in the state courts.

3. Crime committed partly in one state, partly in another; partly in one county, partly in another. Place of trial discussed.

4. Clause of constitution that trial shall be in county where offense committed discussed.

(Syllabus by the Court.)

Error to circuit court, Logan county.

Petition of Stuart McNeely for a writ of habeas corpus to discharge him from the custody of the jailer of Logan county. From a judgment denying the writ the petitioner brings error. Affirmed.

Vinson & McDonald, for plaintiff in error.

Alfred Caldwell, Atty. Gen., for the State.

Brannon, J. Stuart McNeely filed his petition in July, 181)1, in the circuit court of Logan county, praying for a writ of habeas corpus to discharge him from the iail of that county, and upon demurrer the court refused to award the writ, and dismissed the petition, from which action of the court he has obtained this writ o! error. The petition states that in 1891 Frank Hurley died from gunshot wounds inflicted by McNeely while both were in the state of Kentucky, standing between high and low water marks, about 10 feet above the water's edge, on the Kentucky side of the Tug fork of Big Sandy river, formerly called the "East Fork;" that Hurley died in Logan county; that McNeely is confined in the jail of Logan county upon criminal process issued by a justice of that county to answer for the murder of Hurley; that the state of West Virginia has no jurisdiction over said offense, because it was committed in Kentucky; and it prays that a writ of habeas corpus issue for his relief, and that he be discharged from custody. The petition does not state anything as to McNeely's citizenship. The boundary line in that locality between the states of West Virginia and Kentucky is as it was between Virginia and Kentucky at the date of the formation of West Virginia. Const. W. Va. art. 2, § 1; Code Va. 1860, c. 1, § 6. The stream called "Tug Fork" is here the boundary, and the line between the states is its middle. Handly's Lessee v. Anthony, 5 Wheat. 374; 1 Bish. Crim. Law, § 150. I think it clear that the mortal blow was given within the territory of Kentucky. But Hurley died within the territory of West Virginia; and under our Code, though the mortal blow was given in Kentucky, this state has jurisdiction to try McNeely, if the provision be vaild. Chapter 144, § 6, reads as follows: "If a person be stricken or poisoned in, and die by reason thereof out of, this state, the offender shall be as guilty, and be prosecuted and punished, as if the death had occurred in the county in which the mortal stroke or poison was given or administered. And if any person be stricken or poisoned out of this state, and die by reason thereof within this state, the offender shall be as guilty, and may be prosecuted and punished, as if the mortal stroke had been given, or the poison administered, in the county in which the person so stricken or poisoned may so die." It is relied upon as a chief point in the prisoner's case that the latter clause of said Code section is in violation of section 14, art. 3, of the state constitution, and section 3, art. 3, of the federal constitution. Section 14, art. 3, of the state constitution provides that the trials of crimes shall be "in the county where the alleged offense was committed." This raises the question, where was this offense committed, in a legal point of view, —in Kentucky, where the bullet struck its victim, or in West Virginia, where he died? We must look to the common law to answer this outside the statute. The ancient common law is said to have propounded the very unreasonable principle that,, if a person be wounded in one county, and die in another, his murderer could be tried in neither. 1 Hawk. P. C. c. 13, § 13, thus states it: "It is said by some that the death of one who died in one county of the wound given in another was not in-dictable at all at common law, because the offense was not complete In either county, and the jury could only inquire of what happened in their own county. But it hath been holden by others that, if the corpse were carried into the county where the stroke was given, the whole might be inquired of by a jury of the same county." In volume 2, c. 25, §36, Hawkins states that as the more general opinion. Chitty says, in 1 Crim. Law, *178, that where the blow and death were in different counties "it was doubted" whether the murderer could be punished in either. Blackstone says it could be punished in either county. Bl. Comm. bk. 3, p. 303. But that great English authority on criminal law, Lord Hale, vindicates the ancient common law from this reproach, saying: "At common law, if a man had been stricken in one county and died in another, it was doubtful whether he were in-dictable or triable in either; but the more common opinion was that he might be indicted where the stroke was given, for the death is but a consequence, and might be found, though in another county." So save East, (1 P. C. c. 5, § 128.) In John Lang's Case, Y. B. 6 Hen. VII. p. 10, (A. D. 1490,) where the blow and death were in different counties, the court said: "In this case it hath been used after the death to bring the dead man, to-wit, the body, into the county where he was struck, and then to inquire and find that he was struck and died of that." And in a case in 1491 Tkemaille, J., said, where the blow and death were In different counties: "It seems it is not material where he died, for the striking is the principal point; but it requires death, otherwise it is no felony; but whether he died in one place or another is not material." Y. B. 7 Hen. VII. p. 8. Abbott, C. J., in Rex v. Burdett, 4 Barn. & Aid. 169, held Hale's authority as superior in this matter. Wharton, in 1 Crim. Law, § 292, says: "By the early English common law the place where the mortal stroke was given had jurisdiction in cases of homicide. As there seemed, however, to be doubts in cases in which the blow was in one jurisdiction and the death in another, the statute 2 & 3 Edw. VI. c. 24, was passed, the effect of which, though inartificially drawn, is to give the place of death jurisdiction. This statute has been held to be part of the common law in several states in this country; but even where it is in force it does not, according to the better opinion, divest the jurisdiction of the place where the blow was struck." 1 Bish. Crim. Proc. § 52. I think the proposition that the prosecution may be where the blow is given, no matter where the death, was the rule under the ancient common law, and certainly under the modern common law as held in American courts. The true view is that the blow is murder or not, according as it produces death or not within a year and a day; and in all cases an indictment lies in the county where the blow was given. Id. § 51. President Garfield received his wound in the District of Columbia, but died in New Jersey; and under a statute that any one "who commits murder within any fort, arsenal, magazine, dock yard or any other place or district or country under the exclusive jurisdiction of the United States, » * » shall suffer death, " it was contended that to say one commits murder within a district the blow and death must both take place there, but on full consideration it was held that the crime was committed within the District, because the blow was there. Guiteau's Case, 47 Amer. Rep. 247. In Riley v. State, 9 Humph. 646, where the death and blow were in different counties, the Tennessee court, under a statute providing that trial should "be in the county where the offense may have been committed, " said it repealed the statute of 2 & 3 Edw. VI., that the blow was the offense, the death the mere result; and that it never was the rule under the old common law that, where death and blow were in different counties, the trial could be in neither, and the trial must be in the county where the blow was given. In Green v. State, 66 Ala. 40, it was held that a statute authorizing prosecution for murder in the county where the blow was struck, though death was out of the state, was valid; the court saying that the wound was the offense, death a sequence, rather than a constituent elemental part, of the crime, and that without the statute the state had jurisdiction. In State v. Ges-sert, 21 Minn. 369, a person was stabbed in Minnesota, and died in Wisconsin, and it was held that the death in Wisconsin was only a consequence of the act committed against Minnesota, and he was triable there. It was not based on a statute. In State v. Kelly, 76 Me. 331, the doctrine is asserted as common law that where the blow is given is where the crime is committed. People v. Gill, 6 Cal. 637, holds the crime is where the blow is, and where the place of trial is changed after the blow by law it must be at the place fixed by law at date of blow. In State v. Bowen, 16 Kan. 475, where the indictment did not charge death to have occurred in the state, where there was no statute on the question, Brewer, J., said that, as the only act the defendant does towards the death is giving the blow, that place is the place where he commits the...