with the requisite contemporaneous intent and design which legally rendered it felonious,-the subsequent death of the injured party being the re

As to the locality of crime committed by shoot-sult or sequence, rather than a constituent eleing or striking across state boundary, see note to State v. Hall (N. C.) 28 L. R. A. 59.

mental part of the crime, the giving of the blow constituting the felony, the blow alone being the act of the party, the death only a consequence of such act.

This note is limited entirely to the consideration of the question of time, and does not include any cases involving the jurisdiction of the court, or the Again, in Stout v. State, 76 Md. 317, it was held question of place, although in many cases the time that by the inflicting of a mortal wound then and and place of the commission of the crime would there, the accused expended his active agency in seem to be treated as analogous, the weight of au- producing the crime, no matter where the injured thority being in favor of the doctrine that the party might languish, or where he might die, if crime is committed where the blow is struck, the death ensued within the time and as a consequence shot fired, or the poison administered, and there- of the stroke or poison given, the grade and charfore it would seem that if the place where the blow acteristics of the crime being determined immeis given determines the place or jurisdiction of the diately that death ensued, and that the result recourt, the crime may equally be said to be com-lated back to the original felonious wounding or mitted at the time the blow is given, the shot is poisoning, the giving of the blow that caused the fired, or the poison is administered. death constituting the offense.

There is, however, very little direct authority upon the question involved in this note, the courts as a general rule seeming to assume that the place where the crime is committed determines the time of the committal of the offense. The dicta of the courts in many cases wherein the point raised was purely one of jurisdiction lead to this supposition. With respect to the question of time, it has been held that murder is a complex term denoting several facts of which the death of the party is one of the most essential. The mortal stroke or the administration of poison does not constitute the crime, unless the sufferer dies thereof within a yearing the act until its final result. and a day. Com. v. Parker, 2 Pick. 550, 558. This principle may be said to be the settled rule of law, the authorities as a whole supporting it.

And so in State v. Gessert, 21 Minn. 369, it was held that it was for his acts that the defendant was responsible, such acts constituting his offense, the death which characterized those acts not being his act but the consequence thereof.

In United States v. Guiteau, 1 Mackey, 498, 539, it was held that murder was committed within the District of Columbia when the felonious blow was struck there, notwithstanding the consequent death happened without the District and in one of the states.

So, in People v. Gill, 6 Cal. 637, where the blow was given before, but the death ensued after, the passing of the California statute of April 16, | 1856, which provided that upon trials for crimes committed previous to its passage the party should be tried by the laws in force at the time of the commission of such crime, the court holding that the death must be made to relate back to the unlawful act which occasioned it, and that as the party died in consequence of the wounds received on a particular day, the day on which the act was committed, and not the one on which the result of the act was determined, was the day on which the murder was properly charged.

And again, in Green v. State, 66 Ala. 44, 41 Am. Rep. 744, it was held that the crime of murder consisted in the infliction of the fatal wound coupled

Again, in Com. v. Macloon, 101 Mass. 1, 7, 100 Am. Dec. 89, the court in support of the theory that the deed is committed at the time when the fatal blow, etc., is given, stated that the injury and death were as much the continuance, operation, and effect of the unlawful act as if the deed had proved instantly fatal, the unlawful intent attending and qualify

And in Riley v. State. 9 Humph. 646, 658, it was held that the blow given was the act of the party, and the death was only the consequence of the blow.

So, in State v. Carter, 27 N. J. L. 499, the time that the blow was given was looked upon as the time of the committal of the offense. That case, however, was one dealing with the question of jurisdiction.

And in People v. Adams, 3 Denio, 190, 45 Am. Dec. 468, which was also a case relating to jurisdiction, the court held that a crime was committed in the state of New York at a time when a party, though out of the state, put in motion his act by an innocent third party acting under him within the state.

Again, in Burns v. People, 1 Park. Crim. Rep. 182, 185, the court said that if a party assaulted, after a felonious attempt, died within a year and a day, the same act, which till his death was an assault and a misdemeanor only, though aggravated, was by that event shown to have been a mortal wound, the event, strictly speaking, not changing the character of the act, but relating back to the time of the assault, and the same act which might be a felonious assault only, had the party not died, was shown by that event to have been a mortal wound and the crime a capital felony.

7. When the county attorney finished his closing address to the jury, some of the bystanders, without the knowledge or connivance of anyone connected with the prosecution, applauded, which was quickly suppressed by the presiding judge, and who administered a rebuke to the persons making the applause. Held, that the record failed to disclose that the

defendant was prejudiced by the demonstration.

(October 1, 1895.)

Messrs. Reid & Morgan,M. V. Moudy, and Albert & Reeder for plaintiff, in error. Mr. A. S. Churchill, Attorney General, for the State.

Norval, Ch. J., delivered the opinion of the court:

An information was filed by the county attorney in the district court of Nance county, charging the plaintiff in error, Andrew Deb ney, with murder in the first degree. prisoner was found guilty as charged, and was

The

RROR to the District Court for Nance by the court sentenced to be hanged, which

Ebony to review a judgment convicting judgment he seeks to reverse by this proceed.

defendant of murder. Affirmed.

The facts are stated in the opinion.

And in state v. Hall, 114 N. C. 909, 919, 28 L. R. A. 59, it was stated that if a party standing in one state shoots at another in a neighboring state, until the act consummates a crime there is simply an attempt, but when the party is wounded by such shot the crime in its completeness exhibits itself.

So, in State v. Bowen, 16 Kan. 475, the court stated that although the crime was not complete until death, yet the death simply determined the character of the crime committed in giving the blow, and; referred back to and qualified that act.

ing. It appears from the record before us that the plaintiff in error and his wife, Catherine

given date, and while the state laws had changed the penalty prior to the finding of the indictment. the court held the indictment sufficient as charging that the deceased died on the day of the act committed, prior to the finding of the indictment, and the passing of the law changing the death penalty. Again, in Com. v. Stafford, 12 Cush, 619, the court would also seem to lean to the opinion that the crime is committed when the poison is adminstered at various times, death or murder being the result. In that case, however, the question was one And it has been held that the offense of shooting of practice relating to the allegation of the crime at another is committed in the state of Georgia | in the indictment, as being caused by injuries inwhen one in the state of South Carolina, without flicted on different days. malice aforethought, but not in self-defense, or under other circumstances of justification aims and fires a pistol at another, who at the time is in the former state, even though the ball misses him and strikes the water in that state near the boat which he occupies. Simpson v. State, 92 Ga. 41, 22 L. R. A. 248.

In a case wherein the defendant was convicted of manslaughter under § 5344 of the United States Revised Statutes, which makes it manslaughter for a captain, engineer, pilot, or other person employed on a vessel, by his misconduct, negligence, or inattention to his duties, to cause the death of any person, the court stated that the offender was guilty, not when the misconduct or negligence occurred, but where that misconduct bore fruit by causing the death of a human being. Re Doig, 4 Fed. Rep. 193, 196.

In Archer v. State, 106 Ind. 426, 432, the court pointed out the conflict in the authorities as to whether death was part of the crime of murder, some authorities maintaining that death was the mere consequence of the crime; others holding that it was part of the crime, for the reason that there was no murder until death occurred, which must be within a year and a day, but the court did not pass upon the question, as in that case, which was one of murder, the defendant's acts were sub-ceased was no part of the offense. stantive criminal wrongs, forming essential parts of the crime, and the point was wholly jurisdictional in its character.

And the same conclusions would seem to have been arrived at by the court in the case of State v. Kelly, 76 Me. 331, 49 Am. Rep. 620, although that was a case of jurisdiction.

So, it would seem that the court, in State v. Blunt, 110 Mo. 322, 337, looked upon the offense as committed at the time the blow was given, inasmuch as it stated that the fact that death occurred a short time after the county boundary had been reached, was a mere incident and result of the crime previously committed in another county. But that case related solely to the question of jurisdiction.

And the same principles form the basis of the court's decision in passing upon the court's jurisdiction in Ex parte McNeeley, 36 W. Va. 84, 15 L. R. A. 226, a poisoning case, where the death occurred within the state, but in that case as jurisdiction was expressly conferred upon the state court by statute, the court upheld the prosecution in the state where the death occurred.

Although the case of State v. Ryan, 13 Minn. 371, was one wherein the sufficiency of the indictment was attacked, the defendant being indicted and convicted of murder in the first degree, under the laws in effect at the time charged in the indictment, which alleged the killing of the deceased on a

In Rex v. Hargrave, 5 Car. & P. 170, in a case of manslaughter against the prisoner as principal in the second degree, the court stated that the giving of the blows which caused the death constituted the felony, and that the languishing of the de

And again, the case of Reg. v. Lewis, 7 Cox, C. C. 277, Dears. & B. C. C. 182, 186, 26 L. J. M. C. N. S. 104, 3 Jur. N. S. 525, would also seem to support the theory that the offense was committed at the time the blow is given, although that case was one entirely relating to the question of jurisdiction.

In Reg. v. Holland, 2 Moody & R. 351, the court stated that if the prisoner wilfully and without justifiable cause, inflicted the wound which ultimately caused the death, he was guilty of murder, and that it made no difference whether the wound was in its nature instantly mortal, or whether it became the cause of death by reason of not being properly cared for, the real question being whether in the end the wound inflicted was the cause of death, the court considering the ultimate death as the consequence of the blow.

In the case of Chapman v. People, 39 Mich. 357, 359, 361, 362, in answer to the argument that the murder was considered in law as occurring when the blow was given which resulted in death, the court looked upon death as an essential ingredient in homicide, and that until it occurred there was no such crime, no murder being then committed, there being no doctrine of relation which could alter the date or the time of the death, and no rule which could anticipate the death and complete the crime earlier,—especially where there was no statutory provision to the contrary.

E. W.

ing 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, cannot change the locality of the crime."

66

it may be true that the crime is not completed until death, yet that the death simply deter mines the character of the crime committed in giving the blow, and refers back to and qualifies that act."

In State v. Gessert, 21 Minn. 369, it appeared that the defendant was indicted for murder in Washington county, in that state, by feloniously stabbing and wounding one Savazyo, in said county, from which he died in the county of Pierce, in the state of Wisconsin. The indictment was demurred to, on the ground that it did not charge the commission of an offense in Washington county. The court sustained the indictment. Berry, J., in passing upon the question of jurisdiction, said: "It is for his acts that defendant is responsible. They constitute his offense. The place where they are committed must be the place where his offense is committed, and therefore the place where he should be indicted and tried. In this instance the acts with which defendant is charged, to wit, the stabbing and wounding, were committed in Washington county. The death which ensued in Pierce county, though it went to characterize the acts committed in Washington county, was not an act of defendant committed in Wisconsin, but the consequence of his acts committed in Washington county."

State v. Carter, 27 N. J. L. 499, was an indictment for murder. The blows were struck in Hudson county, New York, from which the injured party died in New Jersey, where the prosecution was brought. Vredenburgh, J., in speaking for the court upon the ques tion of jurisdiction, uses this language: The only fact connected with the offense alleged to have taken place within our jurisdiction is that, after the injury, the deceased came into and died in this state. This is not the case where a man stands on the New York side of the line, and, shooting across the border, kills one in New Jersey. When that is so, the blow is in fact struck in New Jersey. It is the defendant's act in this state. The passage of the ball after it crosses the boundary, and its ac tual striking, is the continuous act of the defendant. In all cases the criminal act is the impinging of the weapon, whatever it may be, on the person of the party injured, and that must necessarily be where the impingement happens. And whether the sword, the ball, If the crime is deemed committed in the or any other missile passes over a boundary in county where the fatal wounds were given, as the act of striking, is a matter of no conse- the authorities hold, it follows that the offense quence. The act is where it strikes, as much was committed when such wounds were inwhere the party who strikes stands out of the flicted. True, the death occurred at a subse. state as where he stands in it. Here no act is quent date, but it relates back to the time the done in this state by the defendant. He sent mortal injury was received. The accused comno missile or letter or message that operated as mitted all the acts constituting the offense on an act within this state. The coming of the July 4: the death which ensued in Platte party injured into this state afterwards was his county, on July 9, merely characterized his own voluntary act, and in no way the act of acts. The crime of murder consists in intenthe defendant. If the defendant is liable here tionally and unlawfully causing the death, at all, it must be solely because the deceased and, while it is true that the crime is not comcame and died here after he was injured. Can plete until death occurs, yet it is incorrect to that, in the nature of things, make the defend- say that the death is an element in the crime. ant guilty of murder or manslaughter here? It is merely a necessary condition to it. The If it can, then, for a year after an injury is in- elements of the crime are the acts of the perpeflicted, murder, as to its jurisdiction, is ambu- trator, such as the malice, intent, and the latory at the option of the party injured, and wound or blow. The crime was committed becomes punishable, as such, wherever he may when the mortal wounds were inflicted, and see fit to die. It may be manslaughter, in its he is to be tried by the laws then in force. various degrees, in one place; murder, in its A case precisely in point is People v. Gill, 6 various degrees, in another. Its punishment Cal. 637. The defendant was indicted for the may be fine in one country, imprisonment, crime of murder. After the blow, but prior whipping, beheading, strangling, quartering, to the death of the victim, a change in the hanging, or torture, in another, and all for no statute was made by the legislature. A conact done by the defendant in any of these juris-viction was had under the amended law, and dictions, but only because the party injured found it convenient to travel

In the case of State v. Bowen, 16 Kan. 475, Brewer, J., after reviewing the authorities bearing upon the question, says: "It seems to us, without pursuing the authorities further, reasonable to hold that, as the only act which the defendant does toward causing the death is in giving the fatal blow, the place where he does that is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime; at least, that those movements do not, unless under express warrant of the statute, change the place of offense; and that, while

upon a review of the case the supreme court held the crime to be of the date of the blow, and governed by the law then in force. The chief justice, in the course of his opinion, observed: "The blow was given before, but the death ensued after, the passage of the last statute. The death must be made to relate back to the unlawful act which occasioned it, and as the party died in consequence of wounds received on a particular day, the day on which the act was committed, and not the one on which the result of the act was determined, is the day on which the murder is properly to be charged."

Complaint is made of the giving of the twelfth instruction, which reads as follows: