State v. Kelly

• Decision Date: 30 July 1884
• Citation: 76 Me. 331
• Parties: STATE OF MAINE v. DENNIS KELLY.
• Court: Maine Supreme Court

76 Me. 331

STATE OF MAINE v. DENNIS KELLY.

Supreme Judicial Court of Maine.

July 30, 1884

ON REPORT.

Indictment for the murder of Francis A. Smith by shooting and mortally wounding, July 29, 1882, within the limits of Fort Popham, a fort of the United States, from the effects of which shooting and wounding death ensued at Phipsburg, outside the limits of the fort, August 13, 1882.

The defendant pleaded in abatement to the jurisdiction of the court. Thereupon, Asa Bird Gardiner, Judge Advocate, U. S A., and Wilbur F. Lunt, U. S. Attorney for the district of Maine, appeared in behalf of the United States, and presented the following claim to the jurisdiction:

" State of Maine, Sagadahoc, ss. Supreme Judicial Court December Term, 1882. The State of Maine, by indictment, vs. Dennis Kelly.

And now the above entitled cause having come on to be heard on the indictment therein, and the said defendant having filed a plea to the jurisdiction of this honorable court therein, and issue having been joined thereon, now therefore upon said indictment and plea to the jurisdiction and the several pleadings thereunder, the United States of America, by their duly authorized counsel, come into court and respectfully appraise this honorable court that the said United States claim exclusive jurisdiction and cognizance of the crimes alleged in said indictment and of the person of the said defendant to be proceeded against under the laws of the said United States for the crimes in said indictment alleged.

The attention of this honorable court is respectfully invited to the fact that the immediate action taken by the authorities of the State of Maine against the defendant for the alleged crimes and his early release upon bail have prevented the said United States from proceeding earlier in the premises or apprising this honorable court of its claim of exclusive jurisdiction, all of which is respectfully submitted.

Asa Bird Gardiner, Judge Advocate.

Wilbur F. Lunt, U. S. attorney for Maine, counsel for the United States of America."

" Bath, December 29th, 1882."

Henry B. Cleaves, attorney general, and Frank J. Buker, county attorney, for the State of Maine, cited: 1 Chitty Crim. Law 177; Goodwood's case, 1 Leach C. C. L. 432; King v. Coombs, 1 Leach C. C. L. 169; State v. Moore, 26 N.H. 448; 2 Inst. 318; 1 Hale P. C. 427; Com. v. Macloon, 101 Mass. 8; U. S. v. Bladen, 1 Cranch C. C. 458; King v. Hargrave, 5 Car. & Paine, 510; Com. v. Linton, 2 Va. 205; U. S. v. McGill, 4 Dall. 427; U. S. v. Armstrong, 2 Curtis C. C. 446; State v. Bowen, 16 Kan. 475; License Case, 5 How. 504; U. S. v. DeWitt, 9 Wall. 44; Cooley Const. Lim. (3 ed.) 573; U. S. R. S., c. 2, § 1; R. S., c. 131, § 3; Opp. Att'y Gen. U.S. 199; U. S. v. Cornell, 2 Mason 60; State v. Underwood, 49 Me. 181; Com. v. Parker, 2 Pick. 550; St. 2 Geo. II, c. 21; Tyler v. The People, 8 Mich. 320; Stoughton v. State, 13 Smedes & M. 255; Minnesota v. Gessert, 21 Minn. 369; U. S. v. Wells, Dist. of Maine, 11 Am. L. Reg. 424; Moore v. People of Illinois, 14 How. 13; Freeman v. Howe, 24 How. 450; Buck v. Coolbroth, 3 Wall. 334; U. S. R. S., c. 5, § 1342; Articles of War, Art. 58; Coleman v. Tenn, 97 U.S. 509; Benet Courts Martial, 115; Steiner's Case, 6 Op. U. S. Att'y Gen'l 413; Howe's Case, 6 Op. U. S. Att'y Gen'l 511; People v. Adams, 3 Denio 207; Com. v. Roby, 12 Pick. 496.

Asa Bird Gardiner, judge advocate, U. S. A. and Wilbur F. Lunt, U. S. attorney for the district of Maine, for the United States, cited: Stats. 1857, c. 115; 1862, c. 114; U. S. Const. Art. 1 § 8, par. 17; 1 Kent, Com. § 429; U. S. v. Cornell, 2 Mason C. C. 60; U. S. v. Davis, 5 Mason C. C. 356; Com. v. Clary, 8 Mass. 72; U. S. R. S., §§ 5339, 5341; Fox v. State of Ohio, 5 How. 410; Houston v. Moore, 5 Wheat. 21; Prigg v. Com. of Penn. 16 Pet. 539; 1 Bishop Crim. Law, (7 ed.) §§ 113, 115 and notes; 1 Bishop Crim. Pro. (2 ed.) § 51 and notes 6, 7; Rex v. Burdett, 4 Barn. & Ald. 358; Regina v. Lewis, 7 Cox Crim. Cas. 277; Rex v. Hargrave, 5 Car. & Payne, 510; State v. Gessert, 21 Minn. 369; State v. Bowen, 16 Kan. 476; Riley v. State, 9 Humphrey's, 656; People v. Gill, 6 Cal. 637; Green v. State, 66 Ala. 41; U. S. v. Charles J. Guiteau, Official Report, Part III, 1838, 2578, 2634; Stearns v. U. S. 2 Paine, C. C. 300; U. S. v. Bevans, 3 Wheat. 386; U. S. v. Holliday, 3 Wall. 407; U. S. v. Peters, 5 Cranch 115; Slocum v. Mayberry, 2 Wheat. 1.

Washington Gilbert, for the respondent.

WALTON J.

The question is whether the courts of this state have jurisdiction of the crimes of murder or manslaughter committed within Fort Popham near the mouth of the Kennebec river.

We think they have not. Fort Popham is a United States fort. It is erected on land purchased for a fort; and the purchase was made by consent of the legislature of this state. The constitution of the United States declares that congress shall have power to exercise exclusive legislation over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and, in the exercise of this power, congress has enacted what the punishments for murder and manslaughter shall be when committed within any fort, arsenal, dock-yard, magazine, or other place under the jurisdiction of the United States, and conferred authority upon the federal courts to try the persons charged with these offenses. The conclusion is, therefore, inevitable that, the courts of this state do not have jurisdiction of the crimes of murder or manslaughter committed in a United States fort. In fact, we do not know that this proposition is denied by any one.

But it is said that, although a mortal wound may be inflicted within a fort, still, if the person wounded dies elsewhere, the crime must not be regarded as having been committed in the fort, but at the place where the person dies; and that in such a case, the courts of the latter place have jurisdiction. It is undoubtedly true that the courts of the latter place do sometimes have jurisdiction. But we are satisfied that when this is so, it is not because the crime is to be regarded as having been committed there, but because some rule of law, statutory or otherwise, expressly confers such jurisdiction. The modern and more rational view is that the crime is committed where the unlawful act is done, and that the subsequent death, while it may be sufficient to confer jurisdiction, can not change the locality of the crime.

And this brings us to the only question in relation to which there can be any doubt in this case; and that is, whether our statute, which declares that if a mortal wound is inflicted, or poison administered, on the high seas, or without the state, whereby death ensues within the state, such offense may be tried in the county where the death ensues. R. S., c. 131, § 3.

Perhaps it is a sufficient answer to say that this statute was not intended to...