Stout v. State

Alvey, C. J., delivered the opinion of the Court. This appeal, taken under the Act of 1892, ch. 506, enacted as section 77 of Article 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. ³²⁰ There are two questions raised. The first is "on a 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, Maryland, 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 first day of February, 1891. with force and arms, at Cecil County aforesaid, in and upon one George Dittmar, in, &c., then and there being, feloniously, wilfully, and his malice aforethought, did make an assault, &c., and, with a certain stick, &c., him, the said Dittmar, did then and there strike, giving him, the said Dittmar, then and there, one mortal wound; and of which said mortal wound the said Dittmar, on and from the said first day of February, in the year aforesaid, until and upon the fourth 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 fourth day of March, in the year aforesaid, at the county and city last aforesaid, he, the said Dittmar, 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, ³²¹ that in the fourth count it is charged that the mortal blow was inflicted on the deceased by the accused, “at Cecil County, Maryland, with a club, and that of this mortal wound said Dittmar, on and from the said first of February, in the year aforesaid, to the fourth 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 fourth 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 Dittmar, 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 offence 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 ³²² of the wound or poison in another, it was doubted by some whether the murderer 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. Cr.

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 and 3 Edward 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, tided 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, ch. 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 offence 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 the Statute of 2 and 3 Edward VI, ch. 24, is not now applicable or in force in this State, whatever may have been the case prior to our own Act of 1809, ch. 138, sec. 17; and the Statute of 2 George II, ch. 21, was ³²³ never applicable here, as found by Chancellor Kilty, in his Report on the English Statutes, published in 1811. By section 218 of Art. 21 of the Code, codified from section 11 of the Act of 1809, ch. 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 the Statute 2 & 3 Edward VI, nor to that of 2 George 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 decisions 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 a consequence of the felonious act within ³²⁴ 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 given. The-grade and characteristics of the crime are determined immediately that, death ensues, and that result relates back to the original felonious wounding or poisoning.

The giving the blow that caused the death constitutes the crime. Lord Coke seems to have been responsible, to a considerable extent, for the maintenance of the doubt that was formerly entertained upon this subject. In 3 Inst., at page 48, founding his text on the preamble to the Statute of 2 & 3 Edward VI, he says : “ And before the-making of the Statute 2 Edward VI, if a man had been feloniously stricken or poisoned in one county, and after had died in another county, no sufficient indictment could thereof have been taken in either of said counties, because, by the law of the realm, the jurors of one county could not inquire of that which was done in another county. It is provided in that Act that the indictment may be taken in that county where the death doth happen.” The reason assigned for this passage from the Institutes can hardly be accepted as sound at this day — that is, that the jurors of one county cannot-inquire of that which is done in another county.

But we have the authority of the great Sir Matthew Hale to the contrary of this doctrine of Coke. In 1 Hale P. Cr., 426, the author says : “At common law, if a man had been stricken in one county and died in another, it was doubtful whether he were indictable or triable in either, but the common opinion was, that he might be indicted where the stroke was given, for the death is but a consequent, and might be found in another county; ’ ’ and ³²⁵ he cites for this the Year Books, 9 Edw. IV, p. 48, and 7 Hen. VII, p. 8.

And he then proceeds to say, that “ if the party died in another county, the body was removed into the county where the