Stout v. State
| Decision Date | 17 November 1892 |
| Citation | 25 A. 299,76 Md. 317 |
| Parties | STOUT v. STATE. |
| Court | Maryland Court of Appeals |
Appeal and writ of error in one record from circuit court, Harford county.
Alfred Stout was indicted for the murder of George Ditmar. His demurrer to the indictments and motion to discharge the jury were overruled, and defendant was convicted. He appeals, and brings writ of error. Affirmed.
Argued before ALVEY, C.J., and BRYAN, MCSHERRY, FOWLER, BRISCOE, and PAGE, JJ.
C C. Crothers, Rob. C. Thackery, and G. Y Maynadier, for appellant.
John P. Poe, Atty. Gen., for the State.
This appeal, taken under the act of 1892, (chapter 506,) enacted as section 77, art. 5, of the Code, is from the final judgment of the court below, sentencing the appellant to death on a verdict of murder in the first degree. There are two questions raised. The first is on demurrer to the indictment, in respect to the jurisdiction of the court to try the prisoner because of supposed defect of venue as to the commission of the crime; and the second is presented by bill of exception, as to the supposed illegal separation of the jury during the progress of the trial.
1. As to the demurrer to the indictment. The indictment contains four counts. There is no question made upon either the first or second count, but the third and fourth counts are supposed to be obnoxious to the objection taken to them by demurrer. The demurrer was overruled, and the prisoner then pleaded not guilty, upon which he was tried and convicted. The third count of the indictment charges that the mortal blow was inflicted by the prisoner on the deceased in Cecil county Md., but that death, in consequence of the wound, subsequently ensued in the city of Philadelphia, in the state of Pennsylvania. In the language of the indictment it is charged that the accused, "on the 1st day of February, 1891, with force and arms, at Cecil county, aforesaid, in and upon one George Ditmar, in," etc., "then and there being, feloniously, willfully, and of his malice aforethought, did make an assault," etc., "and, with a certain stick," etc., "him, the said Ditmar, did then and there, one fatal wound; and of which said mortal wound the said Ditmar, on and from the said 1st day of February, in the year aforesaid, until and upon the 4th day of March, in the year aforesaid, at the county and city of Philadelphia, in the state of Pennsylvania, then and there did languish, and, languishing, did live; on which said 4th day of March, in the year aforesaid, at the county and city last aforesaid, he, the said Ditmar, of the mortal wound aforesaid, died." The fourth count, charging the felonious assault and wounding as in the third, differs from that count in this: that in the fourth count it is charged that the mortal blow was inflicted on the deceased by the accused at Cecil county, Md., with a club, "and that of this mortal wound said Ditmar, on and from the said 1st of February, in the year aforesaid, to the 4th day of March, in the year aforesaid, languished, and, languishing, did live, as well at and in the county aforesaid as at and in the county and city of Philadelphia, in the state of Pennsylvania, then and there did languish, and, languishing, did live, on which said 4th day of March, in the year aforesaid, at and in the county and city of Philadelphia aforesaid, to wit, at and in Cecil county aforesaid, the said Ditmar, of the mortal wound aforesaid, died." The death occurring in Philadelphia as the result of the mortal wound inflicted in Maryland, the question presented on demurrer to the third and fourth counts of the indictment is one in regard to which some doubts, it would appear, were entertained in the early days of the English common law. These doubts seem to have had their foundation in certain maxims and practice that originally obtained in respect to the venue for the trial of facts, the reason for which has long since ceased to exist; it being supposed, in the early periods of the English law, that it was necessary that the jury should come from the vicinage where the matters of fact occurred, and therefore be better qualified to investigate and discover the truth of the transaction than persons living at a distance from the scene could be. Hence the venue was always regarded as a matter of substance; and where, at the common law, the commission of an offense was commenced in one county and consummated in another, the venue could be laid in neither, and the offender went altogether unpunished. And even in the case of murder, if the mortal wound was inflicted or poison administered in one county, and the party died in consequence of the wound or poison in another, it was doubted by some whether the murder could be punished in either county, for it was supposed that a jury of the first could not take cognizance of the death in the second, and a jury of the second could not inquire of the wounding or poisoning in the first; and so the felon would escape punishment altogether. 1 Chit. Crim. Law, 177. This doubt was founded in a mere technicality, and savored so much of a senseless nicety that it was deemed a reproach to the law; and to remove all doubt, and to fix a certain venue for the trial of the crime, the statute of 2 & 3 Edw. VI. was passed, and, after reciting in a long preamble the great failures of justice which arose from such extreme nicety, that statute enacted that in cases of striking or poisoning in one county and death ensuing in another the offender could be indicted, tried, and punished in the district or county where the death happened, as if the whole crime had been perpetrated within the boundary of such district or county. And by the subsequent statute of 2 Geo. II. c. 21, it was enacted that, where any person feloniously stricken or poisoned at any place out of England shall die of the same in England, or, being feloniously stricken or poisoned in England, shall die of such stroke or poisoning out of England, an indictment thereof, found by the jurors of the county in which either the death or the cause of death shall respectively happen, shall be as good and effectual in law, as well against principals as accessories, as if the offense had been committed in the county where such indictment may be found. The principles or provisions of these two English statutes are not exactly consistent the one with the other, but St. 2 & 3 Edw. VI. c. 24, is not now applicable or in force in this state, whatever may have been the case prior to our own act of 1809, (chapter 138, § 17;) and the statute of 2 Geo. II. c. 21, was never applicable here, as found by Chancellor Kilty in his Report on the English Statutes, published in 1811. By section 278 of article 27 of the Code, codified from section 17 of the act of 1809, (chapter 138,) it is provided that, "if any person be feloniously stricken or poisoned in one county, and die of the same stroke or poison in another county, within one year thereafter, the offender shall be tried in the court within whose jurisdiction such county lies where the stroke or poison was given; and in like manner an accessory to murder or felony committed shall be tried by the court within whose jurisdiction such person became accessory." This statute, as will be observed, conforms neither to St. 2 & 3 Edw. VI. nor to that of 2 Geo. II.; but it is, as we think is manifest, simply in confirmation or declaratory of the common law. This, we think, is made clear upon examination of text writers of high authority, and by judicial decision of courts entitled to great weight in the determination of such a question; and if this provision of our Code be simply declaratory of the common law, as we suppose it to be, the same reason and principle equally apply to the case where the mortal blow or poison is given in any county in this state, and the party so stricken or poisoned shall, in consequence of the blow or poison, die out of the state, within the year and a day after the blow given or poison administered, as to the case provided for by the terms of the statute. In such case it is the law of Maryland that is violated, and not the law of the state where death may happen to occur. By the felonious act of the accused, not only is there a great personal wrong inflicted upon the party assaulted or mortally wounded while under the protection of the law of the state, but the peace and dignity of the state where the act is perpetrated is outraged; and, though death may not immediately follow, yet, if it does follow as the consequence of the felonious act within the year, the crime of murder is complete. In inflicting the mortal wound then and there the accused expends his active agency in producing the crime, no matter where the injured party may languish, or where he may die, if death ensues within the time and as a consequence of the stroke or poison...
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