there.86 And it has been held that a statute providing for a prosecution in a state other than that in which the bigamous marriage takes place is void.87 Statutes in some states provide that an indictment for bigamy or polygamy may be found and tried in the county where the offender resides or where he is apprehended, and such a provision is valid where there is no constitutional limitation on the power of the legislature to fix the place of trial,88 but not where the constitution gives the accused the right to be tried in the county where the offense was committed.89 In some states statutes have been enacted punishing persons who cohabit after a bigamous marriage, and under these statutes a conviction may be had for such cohabitation, although the marriage 86 Alabama. Cox v. State, 117 Ala. 103, 23 So. 886, 41 L. R. A. 760, 67 Am. St. Rep. 166; Beggs v. State, 55 Ala. 108; Williams v. State, 44 Ala. 24. Arkansas. Scoggins v. State, 32 Georgia. McBride v. Graeber, 16 Ga. App. 240, 85 S. E. 86. Illinois. People v. Price, 250 Ill. 109, 95 N. E. 68. Indiana. Welty v. Ward, 164 Ind. 457, 73 N. E. 889, 3 Ann. Cas. 556. Iowa. State v. Hughes, 58 Iowa 165, 11 N. W. 706. Kentucky. Johnson v. Com., 86 Ky. 122, 5 S. W. 365, 9 Am. St. Rep. 269; Cơm. v. Ferrell, 11 Ky. Opinions 566. Maine. State v. Stephens, 118 Me. 237, 107 Atl. 296. Missouri. State v. Smiley, 98 Mo. 605, 12 S. W. 247. New York. People v. Mosher, 2 Park. Cr. 195. North Carolina. State v. Barnett, 83 N. C. 615. Oklahoma. Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603. Texas. Brown v. State (Tex. Cr.), 27 S. W. 137. 87 State v. Stephens, 118 Me. 237, 107 Atl. 296; State v. Ray, 151 N. C. 710, 66 S. E. 204, 134 Am. St. Rep. 1005, 19 Ann. Cas. 566; State V. Cutshall, 110 N. C. 538, 15 S. E. 261, 16 L. R. A. 130; Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603. 88 See the statutes of the various states and the following cases: In re McDonald, 20 Cal. App. 641, 129 Pac. 957; State v. Damon, 97 Me. 323, 54 Atl. 845; People v. Hanley, 109 N. Y. Misc. 591, 180 N. Y. Supp. 342; Houser v. People, 46 Barb. (N. Y.) 33; King v. People, 5 Hun (N. Y.) 297. Such a provision does not authorize a prosecution in the state for bigamy committed outside of it. State v. Stephens, 118 Me. 237, 107 Atl. 296; State v. Ray, 151 N. C. 710, 66 S. E. 204, 134 Am. St. Rep. 1005, 19 Ann. Cas. 566. Such a provision is permissive only, and does not prevent indictment and trial in the county where the offense was committed. Moore v. State, 37 Tex. Cr. 552, 40 S. W. 287. 89 State v. Smiley, 98 Mo. 605, 12 S. W. 247. may have taken place in a state or county other than that in which the prosecution is instituted.90 § 304. Burglary. Ordinarily a prosecution for burglary can be had only in the county in which the offense is committed, that is, in the county where the breaking and entry occurs.91 By statute in some states, however, a prosecution may be had in any county into which property taken by burglary is carried.92 But some courts have held that statutes of this character are invalid because in conflict with constitutional provisions giving the accused a right to a trial by a jury of the county in which the offense is alleged to have been committed.93 90 Alabama. Cox v. State, 117 Ala. 103, 23 So. 886, 41 L. R. A. 760, 67 Am. St. Rep. 166; Beggs v. State, 55 Ala. 108. Florida. Cathron v. State, 40 Fla. 468, 24 So. 496. Illinois. People v. Price, 250 Ill 109, 95 N. E. 68. Iowa. State v. Hughes, 58 Iowa 165, 11 N. W. 706; State v. Sloan, 55 Iowa 217, 7 N. W. 516. Massachusetts. Com. v. Bradley, 2 Cush (Mass.) 553. Minnesota. State v. Johnson, 12 Minn. 476. Missouri. State v. Stewart, 194 Mo. 345, 92 S. W. 878, 112 Am. St. North Carolina. State v. Moon, 178 Vermont. State v. Palmer, 18 Vt. 570. Such a statute is constitutional even though it denominates the offense bigamy. State v. Stewart, 194 Mo. 345, 92 S. W. 878, 112 Am. St. Rep. 529, 5 Ann. Cas. 963. See also as to this offense, § 1125 et seq., infra. 91 Haskins v. People, 16 N. Y. 344; Park v. State, 77 Tex. Cr. 267, 178 S. W. 516; State v. Carroll, 55 Wash. 588, 104 Pac. 814, 133 Am. St. Rep. 1047, 19 Ann. Cas. 1234. And see People v. Jochinsky, 106 Cal. 638, 39 Pac. 1077. This is true of burglary of a railroad car which is part of a train in motion. Ford v. State, 13 Okla. Cr. 612, 166 Pac. 75. 92 People v. Jochinsky, 106 Cal. 638, 39 Pac. 1077; People v. Scott, 74 Cal. 94, 15 Pac. 384; Haskins V. People, 16 N. Y. 344. But it has been held that to give the court of the latter county jurisdiction, the facts showing that a burglary was committed and that property was burglariously taken and carried into the latter county must be set out, for the burglary is not committed there, either actually or in contemplation of law. People v. Jochinsky, 106 Cal. 638, 39 Pac. 1077; People v. Scott, 74 Cal. 94, 15 Pac. 384; Haskins v. People, 16 N. Y. 344. 93 Martin v. State, 176 Ind. 317, 95 N. E. 1001; State v. McGraw, 87 Mo. 161; State v. Carroll, 55 Wash. 588, 104 Pac. 814, 133 Am. St. Rep. 1047, 19 Ann. Cas. 1234. § 305. Conspiracy. To warrant a prosecution for conspiracy in a particular state, the conspiracy must have been entered into in the state or an overt act must have been committed there. The fact alone of a conspiracy is not punishable in a state if it was entered into in another state, whatever its purpose.94 An indictment will lie in the state or country or federal district in which the conspiracy is formed, although it may be to commit a crime in another country or state,95 or though all the overt acts are shown to have been committed in another state or district,96 or in a foreign country.97 But to sustain a prosecution under such circumstances the acts to be performed must be unlawful in the jurisdiction where they are to be performed as well as in the jurisdiction where the conspiracy is entered into.98 An indictment will also lie against all the conspirators in any state or federal district where an overt act is committed by any of the conspirators.99 And of course an indictment Washington. State v. Mardesich, 79 Wash. 204, 140 Pac. 573. It is an indictable offense at common law to enter into a conspiracy in one state to commit a known common-law felony, malum in se, in a sister state. Thompson v. State, 106 Ala. 67, 17 So. 512. 96 Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 Sup. Ct. 760; Vane v. United States, 254 Fed. 28; United States v. Wells, 192 Fed. 870, certiorari denied 225 U. S. 714, 56 L. Ed. 1269, 32 Sup. Ct. 842; Arnold V. Weil, 157 Fed. 429; Bloomer v. State, 48 Md. 521; State v. Nugent, 77 N. J. L. 84, 71 Atl. 485. 97 Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 Sup. Ct. 760; Dealy v. United States, 152 U. S. 539, 38 L. 98A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful, if they are permitted by the local law." American Banana Co. v. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 Sup. Ct. 511, 16 Ann. Cas. 1047. Even where the statute provides for the punishment of persons who commit within the state any crime in whole or in part, persons who enter into a conspiracy in the state to do acts unlawful there cannot be punished there if such acts are in fact done in another jurisdiction where they are not unlawful. People v. Arnstein, 211 N. Y. 585, 105 N. E. 814, rev'g 157 App. Div. 766, 142 N. Y. Supp. 842, which reversed 78 Misc. 18, 138 N. Y. Supp. 806. 99 United States. Gayon v. McCarthy, 252 U. S. 171, 64 L. Ed. 513, 40 Sup. Ct. 244; Brown v. Elliott, 225 U. S. 392, 56 L. Ed. 1136, 32 Sup. Ct. 812; Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. 793, Ann. Cas. 1914 A 614, aff'g 35 App. (Cas. D. C.) 451; Block v. will lie in the state or federal district where the conspiracy is entered into if an overt act is committed there.1 Generally an indictment will lie against any of the conspirators in the county in which the conspiracy was entered into, or in any county in which an overt act was committed pursuant to the conspiracy, but not elsewhere. But statutes sometimes permit a prosecution either in the county where the conspiracy was entered into or in the county where it was agreed to be executed.5 § 306. Dueling. A person cannot be punished in one state for fighting a duel in another state, at least unless he leaves the state United States, 267 Fed. 524; Harrington v. United States, 267 Fed. 97; Tillinghast v. Richards, 225 Fed. 226; United States v. Burke, 218 Fed. 83; United States v. Wells, 192 Fed. 870, certiorari denied 225 U. S. 714, 56 L. Ed. 1269, 32 Sup. Ct. 842; United States v. Campbell, 179 Fed. 762; Robinson v. United States, 172 Fed. 105; Arnold v. Weil, 157 Fed. 429; United States v. Newton, 52 Fed. 275. Arkansas. Wilkin v. State, 121 Ark. 219, 180 S. W. 512. Illinois. People v. Blumenberg, 271 Ill. 180, 110 N. E. 788. Kentucky. International Harvester Co. of America v. Com., 137 Ky. 668, 126 S. W. 352; 8. c., 124 Ky. 543, 99 S. W. 637. New Jersey. State v. Nugent, 77 N. J. L. 84, 71 Atl. 485; Noyes v. State, 41 N. J. L. 418, aff'd 43 N. J. L. 672. New York. People v. Mather, 4 Wend. 229, 21 Am. Dec. 122. Pennsylvania. Com. v. Corlies, 3 Brewst. 575; Com. v. Gillespie, 7 Serg. & R. 469. Washington. State v. Mardesich, 79 Wash. 204, 140 Pac. 573. England. Rex v. Brisac, 4 East 164. Conspirators may be removed to and prosecuted in a federal district in which an overt act has been committed by their coconspirators though they have never been there. Easterday v. McCarthy, 256 Fed. 651, aff'g 250 Fed. 800. 1 People v. Summerfield, 48 N. Y. Misc. 242, 96 N. Y. Supp. 502; People v. Murray, 95 N. Y. Supp. 107; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654. "Where the overt act and the conspiracy are in the same place, local jurisdiction may rest entirely upon the conspiracy." Tillinghast V. Richards, 225 Fed. 226. 2 Though all the overt acts were committed in another county. State v. Nugent, 77 N. J. L. 84, 71 Atl. 485. 3 State v. Nugent, 77 N. J. L. 84, 71 Atl. 485; People v. Summerfield, 48 N. Y. Misc. 242, 96 N. Y. Supp. 502; People v. Murray, 95 N. Y. Supp. 107; Pearce v. Territory, 11 Okla. 438, 68 Pac. 504; Williams v. State, 16 Okla. Cr. 217, 182 Pac. 718. 4 International Harvester Co. of America v. Com., 137 Ky. 668, 126 S. W. 352. 5 King v. State, 86 Tex. Cr. 407, 216 S. W. 1091. 6 State v. Du Bose, 88 Tenn. 753, 13 S. W. 1088; Royall v. Thomas, 28 Gratt. (Va.) 130, 26 Am. Rep. 335. of his domicile for the purpose of the duel. Nor can a person be punished for aiding and abetting a duel in another state, or for giving or bearing a challenge to a duel in another state, where all his acts in relation thereto are done in such other state. But a state may punish the giving or bearing of a challenge or other acts in furtherance of a duel, committed within its borders, although the duel takes place or is to take place in another state. § 307. Embezzlement. The offense of embezzlement may be prosecuted in the state and county where the money or property is actually converted,10 without regard to where it is received 11 or disposed of,12 7 Royall v. Thomas, 28 Gratt. (Va.) 130, 26 Am. Rep. 335. It is sometimes expressly made an offense by statute for an inhabitant or resident of the state, by previous appointment or engagement made therein, to leave the state and engage in a fight with any other person without the limits thereof. Com v. Barrett, 108 Mass. 302. 8 State v. Du Bose, 88 Tenn. 753, 13 S. W. 1088. 9 Com. v. Hooper, Thach. Cr. Cas. (Mass.) 400; State V. Farrier, 1 Hawks (8 N. C.) 487; State v. Taylor, 3 Brev. (S. C.) 243; State v. Du Bose, 88 Tenn. 753, 13 S. W. 1088. 10 State v. Hengen, 106 Iowa 711, 77 N. W. 453; Higbee v. State, 74 Neb. 331, 104 N. W. 748; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233; Campbell v. State, 35 Ohio St. 70; Rex v. Hobson, Russ. & R. 56. And see Spalding v. People, 172 Ill. 40, 49 N. E. 993. 11 Lovelace v. State, 12 Lea (80 Tenn.) 721. Where property is intrusted to a person in one state to be delivered in another, and he refuses to deliver it in the latter state on demand, he may be prosecuted in the latter state, in the absence of any evidence of any act indicating an intent to repudiate the trust and convert the property prior to such refusal. State v. Chew Muck You, 20 Ore. 215, 25 Pac. 355. Where a person contracts in Georgia with the owner of property to take it into North Carolina and sell it as the owner's agent for a part of the profits, and so sells it, and at the termination of the business is short in his returns, he may be prosecuted in North Carolina. State v. Blackley, 138 N. C. 620, 50 S. E. 310. Where defendant's contract of employment required him to account in B county for money collected for his employer, and he took money collected in R county to B county, and there denied to his employer that he had ever received it, it was held that the venue was properly laid in B county, there being nothing to show that he conceived the fraudulent intent to appropriate it prior to such denial. Brown v. State, 23 Tex. App. 214, 4 S. W. 588. 12 Knight v. State, 152 Ala. 56, 44 So. 585; State v. Small, 26 Kan. 209; Campbell v. State, 35 Ohio St. 70. Where embezzlement is committed by drawing checks against public funds, the venue may be laid in the county where the checks are drawn and from which they are sent to the payees, though the bank on which they are drawn is in another county. Territory v. Hale, 13 N. M. 181, 81 Pac. 583, 13 Ann. Cas. 551. |