The admission of the record of conviction does not exclude other competent evidence of the guilt of the principal.68

[158] bb. Record of Conviction or Acquittal. The record of the conviction of the principal is admissible on the trial of the accessary to prove the guilt of the principal;69 and this is equally true where the conviction is on a plea of guilty,70 or upon evidence which would not have been admissible against the accessary to prove his guilt."1 Of course evidence of the conviction of the principal is not

N. Y.-Levy v. Peo., 80 N. Y. 327. N. C.-State v. Chittem, 13 N. C. 49.

Pa.-Buck v. Com., 107 Pa. 486. Tex.-Fondren v. State, 74 Tex. Cr. 552, 169 SW 411; Millner v. State, 72 Tex. Cr. 45, 162 SW 348; Harrison v. State, 69 Tex. Cr. 291, 153 SW 139; Hamlin v. State, 39 Tex. Cr. 579, 47 SW 656; McIntyre v. State, (Cr.) 33 SW 347 (flight); Armstrong V. State, 33 Tex. Cr. 417, 26 SW 829; Crook v. State, 27 Tex. A. 198, 11 SW 444; Arnold v. State, 9 Tex. A. 435. Eng. Reg. v. Pym, 1 Cox C. C. 339.

[a] Testimony of negroes.-On the trial of a white man charged as an accessary, the principal felon being a negro, the testimony of negroes was admissible upon the question of the principal's guilt, although such testimony would not have been admissible to prove the accessary's guilt. State v. Chittem, 13 N. C. 49.

65. State v. Brown, 130 Iowa 57, 106 NW 379; Self v. State, 6 Baxt. (Tenn.) 244; Harrison v. State, 69 Tex. Cr. 291, 153 SW 139; Reg. v. Pym, 1 Cox C. C. 339.

[a] Declarations and threats of the principal made before the commission of the homicide are admissible to prove his guilt on the trial of the accessary. Self v. State, 6 Baxt. (Tenn.) 244; Reg. v. Pym, 1 Cox C. C. 339.

66. Smith v. State, 46 Ga. 298; Harrison v. State, (Tex. Cr.) 153 SW 139; Hinson v. State, 51 Tex. Cr. 102, 100 SW 939. But compare State v. Chittem, 13 N. C. 49 (testimony of negroes that was inadmissible against the principal).

67. Jones v. State, 58 Ark. 390, 24 SW 1073; State v. Chittem, 13 N. C. 49.

68. Jones v. State, 108 Ark. 447, 158 SW 132; State v. Mosley, 31 Kan. 355, 2 P 782; Levy v. Peo., 80 N. Y. 327.

Record of conviction see infra § 158.

69. U. S.-U. S. v. Hartwell, 26 F. Cas. No. 15,318, 3 Cliff. 221. Ark.-Tiner v. State, 110 Ark. 251, 161 SW 195.

Cal.-Peo. v. Bearss, 10 Cal. 68. Ga-Anderson v. State, 63 Ga. 675; Studstill v. State, 7 Ga. 2.

Ill-Baxter v. Peo., 7 Ill. 578. Kan.-State v. Mosley, 31 Kan. 355, 2 P 782.

La-State v. Hunter, 43 La. Ann. 157, 8 S 624.

Mass.-Com. v. Knapp, 10 Pick. 477, 20 AmD 534.

Mont.-State v. Gleim, 17 Mont. 17, 41 P 998, 52 AmSR 655, 31 LRA 294.

N. J.-State v. Fiore, 85 N. J. L. 311, 88 A 1039.

N. Y.-Levy v. Peo., 80 N. Y. 327; Jones v. Peo., 20 Hun 545 [aff 81 NY. 637 mem]; Peo. v. Gray, 25 Wend. 465; Peo. V. Buckland, 13 i

Wend. 592.

N. C.-State v. Duncan, 28 N. C. 236; State v. Chittem, 13 N. C. 49. Pa.-Buck v. Com., 107 Pa. 486. S. C.-State v. Sims, 18 S. C. L. 29. Tex.-Dent v. State, 43 Tex. Cr. 126, 65 SW 627 [expl Kirby v. U. S., 174 U. S. 47, 19 SCt 574, 43 L. ed. 890]; Tuttle v. State, (Cr.) 49 SW Eng.-Rex v. Baldwin, 3 Campb.

82.

265.

But see State v. Steeves, 29 Or. 85, 43 p 947 (holding that, on the trial of a person jointly indicted with another for the crime of murder in the first degree, the record of the conviction of such other who had been tried first and convicted of murder in the second degree was not admissible); Rex. v. Turner, 1 Moody C. C. 347 (where there was an intimation that had the principal been convicted, and had the indictment against the prisoner alleged his guilt and not his conviction, the conviction would not have been any evidence of the principal's guilt).

[a] Although the principal was convicted pending the trial of the accessary, the record of such conviction is admissible to prove his guilt on the trial of the accessary. Jones v. Peo., 20 Hun. 545 [aff 81 N. Y. 637 mem].

[b] Verdict of guilty; but no judgment.-It has been held that a record showing merely a verdict of guilty against the principal without rendition of judgment thereon is not admissible against the accessary. State v. Duncan, 28 N. C. 98.

[c] In Pennsylvania, a plea of nolo contendere-a form of pleading guilty by the principal, no judgment having been rendered thereon, has been held not admissible against the accessary to prove the guilt of the principal. Buck V. Com., 107 Pa. 486.

70. U. S.-U. S. v. Hartwell, 26 F. Cas. No. 15,318, 3 Cliff. 221.

N. Y.-Jones v. Peo., 20 Hun 545 [aff 81 N. Y. 637 mem].

N. C.-State v. Chittem, 13 N. C. 49.

Pa.-Com. v. House, 10 Pa. Super

259.

Eng.-Rex v. Blick, 4 C. & P. 377, 19 ECL 562.

71. State V. Chittem, 13 N. C. 49.

72. Mixon v. State, 123 Ga. 581, 51 SE 580, 107 AmSR 149.

73. U. S.-U. S. v. Hartwell, 26 F. Cas. No. 15,318, 3 Cliff. 221. Ark.-Jones v. State, 108 Ark. 447, 158 SW 132.

Cal.-People v. Bearss, 10 Cal. 68. Ga. Anderson v. State, 63 Ga. 675; Studstill v. State, 7 Ga. 2: Snow v. State, 5 Ga. A. 608, 63 SE 651. Kan.-State V. Mosley, 31 Kan. 355, 2 P 782.

La.-State v. Hunter, 43 La. Ann.

157, 8 S 624.

Mass.-Com. v. Knapp, 10 Pick. 477, 20 AmD 534.

192.

Miss.-Keithler v. State, 18 Miss. Mont.-State v. Gleim, 17 Mont. 17, 41 P 998, 52 AmSR 655, 31 LRA 294.

N. J.-State v. Fiore, 85 N. J. L. 311, 88 A 1039.

N. Y.-Levy v. Peo., 80 N. Y. 327; Peo. v. Buckland, 13 Wend. 592.

N. C.-State v. Duncan, 28 N. C. 236; State v. Chittem, 13 N. C. 49. Pa.-Buck v. Com., 107 Pa. 486.

S. C.-State v. Burbage 51 S. C. 284, 28 SE 937; State v. Crank, 18 S. C. L. 66, 23 AmD 117; State v. Sims, 18 S. C. L. 29.

Tex.-Dent v. State, 43 Tex. Cr. 126, 65 SW 627; West v. State, 27 Tex. A. 472, 11 SW 482.

Eng.-Rex v. Blick, 4 C. & P. 377, 19 ECL 562; Rex v. Smith, 1 Leach C. C. 323; 4 Blackstone Comm. p 324.

74. See cases infra note 75. [a] Even if the principal pleads guilty upon his trial, it will not be conclusive as to the accessary. Snow v. State, 5 Ga. A. 608, 63 SE 651.

75. U. S.-U. S. v. Hartwell 26 F. Cas. No. 15,318, 3 Cliff. 221.

Cal-People v. Bearss, 10 Cal. 68. Ga.-Anderson v. State, 63 Ga. 675; Smith v. State, 46 Ga. 298; Studstill v. State, 7 Ga. 2; Simmons v. State, 4 Ga. 465; Snow v. State, 5 Ga. A. 608, 63 SE 651.

Kan.-State v. Mosley, 31 Kan. 355, 2 P 782.

Mass.-Com. v. Knapp, 10 Pick. 477, 20 AmD 534.

Mont.-State v. Gleim, 17 Mont. 17, 41 P 998, 52 AmSR 655, 31 LRA 294.

N. Y.-Levy v. Peo., 80 N. Y. 327; Peo. v. Buckland, 13 Wend. 592. N. C.-State v. Chittem, 13 N. C. 49.

Pa.-Buck v. Com., 107 Pa. 486. S. C.-State v. Burbage, 51 S. C. 284, 28 SE 937..

Tex.-Dent v. State, 43 Tex. Cr. 126, 65 SW 627.

Eng.-Rex v. Smith, 1 Leach C. C.

263.

76. Studstill V. State, 7 Ga. 2; Com. v. York, 9 Metc. (Mass.) 93. 43 AmD 373; Com. v. Knapp, 10 Pick. (Mass.) 477, 20 AmD 534.

[a] Showing innocence of principal. -The innocence of the principal must be proved "by some new and incontestable evidence; as that, in the present case, there was no murder, or that Samuel Mattox was elsewhere or in a condition, from a disease or other cause, that rendered it impossible for him to have perpetrated the crime." Studstill v. State, 7 Ga. 2, 11. 77. State V. Chittem, 13 N. C. 49. 78. State v. Burbage, 51 S. C. 284, 28 SE 937.

competent.79

Record of acquittal of principal. In some jurisdictions, where the accessary is indictable as principal, and may be tried before the conviction of the principal, and where the acquittal of the principal does not affect the criminal liability of the accessary, it is held that the record of the acquittal of the principal is not admissible in evidence on the trial of the accessary to prove the innocence of the principal.81

80

[159] cc. Confessions and Admissions of Principal. The authorities are not clear as to whether confessions and admissions of the principal as to his own guilt are admissible on the trial of the accessary to prove the guilt of the principal.82 When the principal is a competent witness against the accessary and has testified acknowledging his guilt, it has been held that evidence of confessions on his part is not admissible.83 In some cases the general rule is laid down that the confessions and admissions of the principal are not admissible in evidence on the trial of the accessary to prove the principal's guilt. In the majority of cases, however, which seem to be supported by the better reasoning, the broad rule is laid down that on the trial of the accessary confessions and admissions on the part of the principal are admissible to prove the principal's guilt,85 provided the effect thereof is expressly limited to that object.se

84

86

Limitations of rule. The confessions of the principal must have been such as would have been admissible against himself;87 and further they are inadmissible and have no probative force to prove the guilt of the accessary as to the incitement.88

[§ 160] (b) Sufficiency of Evidence. In order to warrant the conviction of an accessary, the guilt of the principal must be established to the same degree of certainty as if he himself were on trial, that is, beyond a reasonable doubt.89 The prosecution must show by some sort of substantial proof at least that an alleged accessary after the fact had some knowledge of the principal's offense; 90 but it is not necessary to show that there was an agreement in words or in writing between the principal and the alleged accessary; an agreement or meeting of minds between them may be established as an inference from other facts and circumstances proved.92 It is not necessary to show that the accessary had knowledge of the principal's modus operandi.93 Whether the testimony is sufficient to justify a conviction is for the jury.94

.91

[161] 3. Grade or Degree of Offense. At common law an accessary cannot be convicted of an offense of a higher 95 nor, it seems, of a lower 96 grade than that of the principal. The common-law rule, however, has been changed in some states by statute.97 It has been held that, if the principal

80. See supra §§ 103, 155. 81. Peo. v. Kief, 126 N. Y. 661, 27 NE 556.

82. See cases infra this section. 83. Vaughan v. State, 57 Ark. 1, 20 SW 588 [expl Casey v. State, 37 Ark. 671.

84. State v. Newport, 4 Del. 567; Buck v. Com., 107 Pa. 486; Ogden v. State, 12 Wis. 532. 78 AmD 754; Reg. v. Hansill, 3 Cox C. C. 597; Reg. v. Read, 1 Cox C. C. 665; Rex v. Turner, 1 Moody C. C. 347. See also Self v. State, 6 Baxt. (Tenn.) 244 (where the question was discussed but not decided). But compare Rex v. Blick, 4 C. & P. 377, 19 ECL 562 (where, in a case in which the principal was convicted on a plea of guilty, the court said: "Whatever is evidence against the principal, is prima facie evidence of the principal felony, as against the accessary; and if the principal is convicted on his own confession, that is prima facie evidence of his guilt as against the accessary, but not conclusive").

85. U. S.-U. S. v. Hartwell, 26 F. Cas. No. 15,318, 3 Cliff. 221 [expl Rex v. Turner, 1 Moody C. C. 347].

Ga.-Brooks v. State, 103 Ga. 50, 29 SE 485; Smith v. State, 46 Ga. 298; Studstill v. State, 7 Ga. 2; Gullatt v. State, 14 Ga. A. 53, 80 SE 340.

Miss.-Lynes v. State, 36 Miss. 617. N. H.-State v. Rand, 33 N. H. 216. N. M.-Terr. v. Dwenger, 2 N. M. 73.

S. C.-State v. Sims, 18 S. C. L. 29.

Tex.-Millner v. State, 72 Tex. Cr. 45, 162 SW 348; Hamlin v. State, 39 Tex. Cr. 579, 47 SW 656; Bluman v. State, 33 Tex. Cr. 43, 21 SW 1027, 26 SW 75; Crook v. State, 27 Tex. A. 198. 11 SW 444; Simms v. State, 10 Tex. A. 131.

221.

(where this rule does not seem to have been followed).

89. Turner v. State, 124 Ga. 31, 52 SE 1; Gibson v. State, 53 Tex. Cr. 349, 110 SW 41; Poston v. State, 12 Tex. A. 408; Rex v. Wells, M. & M. 326, 22 ECL 536.

[a] On a prosecution against principal and accessaries the case against the principal was proved by the uncorroborated testimony of an accomplice only, but the testimony of the accomplice as against the accessaries was corroborated, and the court directed the jury to acquit all the prisoners. Rex v. Wells, M. & M. 326, 22 ECL 536.

90. State v. Naughton, 221 Mo. 398, 120 SW 53.

91. State v. Wakefield, 88 Conn. 164, 90 A 230.

92. State v. Wakefield, 88 Conn. 164, 90 A 230.

93. Keliher v. U. S., 193 Fed. 8, 114 CCA 128 (prosecution for aiding and abetting a national bank clerk to misappropriate funds of the bank).

94. State v. Kennedy, 85 S. C. 146, 67 SE 152.

95. U. S.-U. S. v. Burr, 4 Cranch 469. 2 L. ed. 684.

Ark.-Ray v. State, 102 Ark. 594, 145 SW 881.

Colo. Trozzo v. Peo., 51 Colo. 323, 337, 117 P 150 [cit Cyc].

Tenn.-Nuthill v. State, 11 Humphr.

247.

Eng.-4 Blackstone Comm. p 36.

"It is a settled principle in the law that the accessary cannot be guilty of a greater offense than his principal. The maxim is accessorius sequitur naturam sui principalis; the accessory follows the nature of his principal." Per Marshall, J., in U. S. v. Burr, 4 Cranch (U. S.) 469, 502, 2 L. ed. 684.

96. Thomas v. State, (Fla.) 74 S 1: Peo. v. Jordan, 244 Ill. 386, 91 NE 482.

97. See statutory provisions. [a] In Florida, for example, an accessary may be convicted of being an accessary to a lower degree than that of which the principal is found guilty. Thomas v. State,, (Fla.) 74 S 1.

[b] Thus, where the statute abolishes the distinction between acces

in the second degree enters into the commission of the offense with the same intent and purpose as that of the principal in the first degree, then the offense of the former will be of the same degree as the principal in the first degree; 98 but that he may have a different criminal intent from the one who

perpetrates or dees the act,99 in which case he will be guilty according to the intent with which he may have performed his part of the act,1 and that he may be found guilty of a higher 2 or a lower 3 grade or degree of crime than that of which the principal in the first degree is convicted.

[162] A. Nature and Scope of Criminal Jurisdiction-1. Definition. Criminal jurisdiction is the power and authority constitutionally conferred upon a court, a judge, or a magistrate to take cognizance of an offense and to pronounce the judgment or sentence provided by law, after a trial in the manner sanctioned by law as proper and sufficient.* The word "jurisdiction," with reference to criminal proceedings, is a term of comprehensive import, embracing every kind of judicial action on the subject matter, from the finding of the indictment to the pronouncing of sentence. It means to have power to inquire into the fact, to apply the law, and to declare the punishment in a regular course of judicial proceeding; it is the right of administering justice through the laws, by the means which the law has provided for that purpose." It does not, however, depend on the sufficiency of the complaint; it is sufficient that the court has jurisdiction of the parties and of the subject matter. When there is jurisdiction of the party and of the offense for which he is tried, the decision of all other questions arising in the case is but an exercise of that jurisdiction."

valid prosecution and conviction for crime unless the court in which the prosecution is instituted and carried on is legally created and constituted,10 at least de facto,11 and has jurisdiction of the offense charged, 12 of the person of defendant,13 and jurisdiction to render the particular judgment rendered.11 Where a court has jurisdiction of a major crime charged, its jurisdiction extends to any crime arising out of the same facts.15 If a valid statute gives a court jurisdiction of an offense its judgment of conviction is valid, although it may have conceived that it was acting upon another statute which is unconstitutional.16 The judgment of a justice of the peace in a prosecution for battery, of which he has jurisdiction as justice, is not invalid because he claims to exercise authority as police judge under an act which does not apply to him." But where a court is an unconstitutional tribunal its judgment may not be upheld because the judicial officer had jurisdiction of the offense and offender as justice of the peace.18 The various remedies in the case of want of jurisdiction are elsewhere treated.19

[164] 3. Different Departments or Sections of Same Court. Subject to constitutional restrictions, 20 a criminal court may be divided into sepaBrown, 3 Okl. Cr. | Mass. 87; Com. v. Knowlton, 2 Mass. 530. Mo.-Ex p. Snyder, 64 Mo. 58. N. Y.-Peo. v. Pickert, 96 App. Div. 637, 89 NYS 183.

[163] 2. Necessity for. There can be no saries and principals, the accessary 131 P 1108; Ex p. may be convicted of that degree of 329, 105 P 577. the crime shown by the evidence; and the conviction of the principal of a lower degree, or even his acquittal, is immaterial on the question of the accessary's guilt. State v. Lee, 91 Iowa 499, 60 NW 119; State v. Gray, 55 Kan. 135, 39 P 1050; State v. Patterson, 52 Kan. 335, 34 P 784 [foll State v. Bogue, 52 Kan. 79, 34 P 410]; Wilson v. State, 2 Oh. Cir. Ct. 40, 1 Oh. Cir. Dec. 350. See also Goins v. State, 46 Oh. St. 457, 21 NE 476 (holding that, by virtue of Rev. St. § 6804, a person indicted for aiding and abetting another in the crime of murder can be tried for a higher grade of the offense than that of which his principal has been victed).

con

397.

State v. Absence, 4 Port. (Ala.)

4. Black L. D. See Eureka County Bank Habeas Corpus Cases, 35 Nev. 90. 126 P 655, 663, 129 P 308 [quot Cyc]. And see. Courts §§ 6, 17. [a] Another definition.-That jurisdiction "which exists for the punishment of crimes." Ellison v. State, 125 Ind. 492, 496, 24 NE 739; Landers v. Staten Island R. Co., 53 N. Y. 450, 457.

5. Hopkins V. Com., 3 Metc. (Mass.) 460; State v. Smith, 29 R. I. 513, 521, 72 A 710.

6. Hopkins V. Com., 3 Metc. (Mass.) 460; State V. Dreger, 97 Minn. 221, 224, 106 NW 904; State v. Smith, 29 R. I. 513, 521, 72 A 710. 7. See cases supra note 6.

8. O'Brien v. Peo., 216 Ill. 354, 363, 75 NE 108, 108 AmSR 219, 3 AnnCas 969; State v. Smith, 29 R. I. 513, 521, 72 A 710.

9. Ex p. Sizemore, 9 Okl. Cr. 376,

at

N. C.-State v. Ridley, 114 N. C. 827, 19 SE 149; State v. Cooper, 104 N. C. 890, 10 SE 510.

S. C.-State v. Grant, 34 S. C. 109, 12 SE 1070.

Tex.-Emery v. State, 57 Tex. Cr. 423, 123 SW 133, 136 AmSR 988; Ex p. Reynolds, 35 Tex. Cr. 437, 34 SW 120, 60 AmSR 54.

Va.-Cropper v. Com., 2 Rob. (41 Va.) 842.

Wis. In re Booth, 3 Wis. 157. 13. See infra § 225 et seq. 14. Peo. v. Hayes, 151 App. Div. 561, 136 NYS 854; Ex p. McClure, 6 Okl. Cr. 241, 118 P 591; Emery v. State, 57 Tex. Cr. 423, 123 SW 133, 136 AmSR 988. And see infra § 3005. 15. Peo. v. Foster, 132. App. Div. 116, 116 NYS 530.

[a] Illustration-Thus a court having jurisdiction of grand larceny in the second degree charged in one count of an indictment has jurisdiction of a misdemeanor charged in another count, based upon willfully and unlawfully taking and carrying away the same property charged to have been stolen in the first count. Peo. v. Foster, 132 App. Div. 116, 116 NYS 530. 16. S 833. 17. 807. 18.

Ex p. Gibson, 89 Ala. 174, 7

Ex p. Reilly, 85 Cal. 632, 24 P

Ex p. Giambonini, 117 Cal. 573, 49 P 732 [dist Ex p. Reilly, 85 Cal. 632, 24 P 807].

19. Motion in arrest see infra § 2768.

Plea to the jurisdiction see infra XI B 4.

Writ of error, appeal, and certiorari see infra § 3258.

Writ of habeas corpus see Habeas Corpus [21 Cyc 292].

Demurrer and motion to quash see Indictments and Informations [22 Cyc 412].

20. Smedley v. Com., 138 Ky. 1,

rate departments for the sake of convenience in transacting business.21 Although a statute provides that a court may have different branches presided over by different judges, it is but a single court, and when that court is regularly convened by a judge authorized to open the same it is regularly in session as a court as to all its branches.22 fact that the several departments of the same court are separately numbered does not make them separate and independent tribunals, so as to prevent the trial and conviction of the accused in one of them, where he was arraigned and pleaded in another.23

The

[165] 4. Effect of Order of Executive. As the criminal jurisdiction of the courts is conferred by statute it is not within the power of the executive to restrict or to enlarge the same.24

[166] 5. Court First Acquiring Jurisdiction. Several courts may have concurrent jurisdiction of an offense.25 In such a case the court first obtaining jurisdiction of the accused retains it to the exclusion of the other,26 and a criminal prosecution instituted in the other court should be dismissed;27

129 SW 547, 139 Ky. 767, 127 SW 485 (holding that St. § 965 [Russell St. § 2812], in so far as it undertakes to divide the terms of the circuit court in McCracken county into civil and criminal terms, is violative of Const. § 59 subs. 1, providing that the general assembly shall not pass local or special acts to regulate the jurisdiction or practice of the courts of justice).

[a] Allotment of cases.-In Louisiana Const. (1879) art 130 provided that all prosecutions instituted in the criminal district court of the parish of Orleans should "be equally apportioned" between the judges thereof lot "by lot." No classification of the cases was required under the constitution of 1879. The present constitution requires an equal allotment or assignment by classes, leav-| ing the classification to be fixed by rules of court. State v. Rose, 114 La. 1061, 1063, 38 S 858; State v. Henderson, 113 La. 232, 36 S 950; State v. Bollero, 112 La. 850, 36 S 754; State v. Sadler, 51 La. Ann, 1397, 26 S 390; State v. Beeder, 44 La. Ann. 1007, 11 S 816; State v. Williams, 34 La. Ann. 1198.

21. Jackson v. State, 87 Md. 191, 59 A 504; State v. Gardner, 33 Or. 149, 54 P 809.

[a] In Ontario the queen's bench, chancery, and common pleas divisions of the high court are not themselves courts, but together constitute the high court of justice for Ontario, which, for the convenient continuance and transaction of business, is thus divided. Not less than two, nor more than three, of the judges of the high court, when sitting together, are called a divisional court of the high court of justice, but this is a mere name of convenience serving to designate them when so sitting; they really sit as judges of the high court, and do but exercise the jurisdiction and administer the functions of the high court of justice. Reg. v. Bunting, 7 Ont.

118.

22. Peo. v. Miller, 256 Ill. 88, 99 NE 873.

[a] Illustration.-(1) Thus if the criminal court of Cook county is properly convened on the first day of the term by a judge authorized to open it, its several branches, presided over by other judges, are thereafter legally in session, the criminal court being but a single court. Peo. v. Miller, 256 Ill. 88, 99 NE 873. (2) The fact that the branch of the court presided over by one judge of said court was engaged in hearing a case

but, where the court which first acquires jurisdiction dismisses the prosecution the other court has jurisdiction, an accused having no vested rights to be tried in any particular court.28 This rule as to priority may, however, be modified or changed by statute.29

So where one of the two judges in a district has assumed jurisdiction of a criminal prosecution, the other cannot interfere.30

When jurisdiction acquired. The jurisdiction of one court does not attach, so as to exclude the jurisdiction of another, on the finding of an indictment charging the offense, until the accused has been arrested under the indictment;31 and in the absence of fraud or collusion the latter may proceed against the accused notwithstanding the indictment.32

The rule of comity between the federal and the state courts is the same in criminal as in civil cases, and, where each can take jurisdiction, the one which first gets it holds it to the exclusion of the other.38 [§ 167] B. Constitutional and Statutory Provisions 34-1. Rule of Construction. Constitutional

seq.

for the reason that it is rarely, if ever, disputed or doubted." Ex P. Baldwin, 69 Iowa 502, 504, 29 NW 428.

[a] Pendency of proceedings in justice's court.-As a felony is cognizable alone in a circuit court, and an indictment is necessary to commence prosecution, pendency of proceedings in a justice's court to determine the probability of defendant's guilt, with a view to discharge him or to hold him to await a future prosecution, does not affect the jurisdiction of the circuit court of another county to prosecute him for the offense, although the prosecution could be in the circuit court of either county. Taylor v. State, 131 Ala. 36, 31 S 371.

27. State v. Raaf, 16 Ida. 411, 101 P 747; Rogers v. State, 101 Miss. 847, 58 S_536.

[a] The reasons for the rule are to prevent confusion and conflicts in jurisdiction, and to prevent a person from being twice tried for the same offense. Rogers v. State, 101 Miss. 847, 58 S 536.

28. Rogers v. State, 101 Miss. 847, 58 S 536.

[a] Offense committed in two counties. But under Code (1892) § 1334, providing that, where an offense is committed partly in one county and partly in another, the jurisdiction shall be in either county where the prosecution shall first be begun, where one accused of murder is indicted in the county where the death occurred, and a nolle prosequi is taken by the prosecution, he cannot be indicted in another county where the fatal blow was struck. Coleman v. State, 83 Miss. 290, 35 S 937, 64 LRA 807, 1 AnnCas 406. 29. Harmon v. State, 8 311, 62 S 438.

Ala. A.

30. State v. Lewis, etc., County Dist. Ct., 49 Mont. 158, 141 P 151. 31. Smithey v. State, 93 Miss. 257, 46 S 410.

32. Smithey v. State, 93 Miss. 257, 46 S 410.

33. Callahan v. U. S., 195 Fed. 924, 115 CCA 612. See also Courts § 637.

[a] Hence, where a federal court obtained jurisdiction of one accused of conspiracy, it did not lose jurisdiction because a state court tried and sentenced him for another offense while out on bail during the pendency of an appeal from the judgment of the federal court. Peo. v. Benham, 71 Misc. 345, 128 NYS 610.

34. Creation of criminal courts see Courts § 178 et seq.

provisions and statutes establishing criminal courts and conferring jurisdiction upon them will be construed reasonably and the legislature's intention sustained, if exercised within constitutional requirements.35

[168] 2. Power of Legislature to Confer and Limit Jurisdiction-a. General Rule. Within constitutional limitations, the legislature has the power to create courts of criminal jurisdiction to determine within what particular jurisdiction crimes shall be tried, and to make that jurisdiction exclusive.36 This rule is applicable to justices' courts, police courts, and recorders' courts.37 But the legislature has no power of course to confer or to limit jurisdiction in violation of constitutional provisions.38 Where the constitution confers general criminal jurisdiction on a superior court, an act of the legislature infringing such jurisdiction is unconstitutional and void.3 39 But in the absence of a constitutional prohibition, the legislature may confer concurrent jurisdiction of the same subject matter upon another court.40

35. U. S. Rider v. U. S., 149 Fed. be established by 164, 79 CCA 112.

Mich.-Peo. v. Coffey, 155 Mich. 103, 118 NW 732; Peo. v. Hurst, 41 Mich. 328, 1 NW 1027.

Minn. State v. Dreger, 97 Minn. 221, 106 NW 904.

Mo.-State v. Ross, 34 Mo. 336. N. Y.-Peo. v. Kennedy, 207 N. Y. 533, 101 NE 442, AnnCas1914C 616. See generally Courts § 192 et seq. [a] Reason for rule.-An act merely establishing a court in which criminals may be tried is not strictly speaking a criminal law, and is not to be construed strictly. State v. Ross, 34 Mo. 336.

36. Ala.-Rossett v. State, 17 Ala. 496.

Cal. In re Westenberg, 167 Cal. 309, 139 P 674; Green v. San Francisco Super. Ct., 78 Cal. 556, 21 P 307, 541; Peo. v. Fowler, 9 Cal. 85.

Colo.-McInerney V. Denver, 17 Colo. 302, 29 P 516.

Ind-Guetig v. State, 66 Ind. 94, 32 AmR 99.

Mo.-State v. Daniels, 66 Mo. 192; State v. Gordon, 60 Mo. 383; State v. Sexton, 141 Mo. A. 694, 125 SW 519. Nebr.-In re Chenoweth, 56 Nebr. 688, 77 NW 63.

Tenn.-State v. Foreman, 8 Yerg.

253.

Tex.-Harris County v. Stewart, 91 Tex. 133, 41 SW 650; Hanks v. State, 13 Tex. A. 289.

Can. In re British Columbia County Cts.. 21 Can. S. C. 446. See also In re Vanciri, 34 Can. S. C. 621 (respective powers of dominion and provincial governments).

See generally Courts § 184 et seq. [a] Where a statute creates a new offense or affixes a new penalty to one previously recognized, and designates the court which shall have jurisdiction under the act, no other court can have jurisdiction of a prosecution under such statute. Rossett v. State, 17 Ala. 496.

[b] Inferior and general jurisdiction. A general jurisdiction is that which extends to a great variety of matters, while an inferior jurisdiction is that which extends only to certain specific causes; hence, where a statute limits the jurisdiction of a court to certain specific matters, it is an inferior tribunal within the meaning of a constitutional provision authorizing the legislature to create inferior tribunals. State v. Daniels, 66 Mo. 192. And see generally Courts § 2, 14, 184 et sea.

[169] b. Conferring Extraterritorial Jurisdiction. It is a general rule of universal acceptation that one state or sovereignty cannot enforce the penal laws of another, nor punish offenses committed in and against another state or sovereignty, and statutes are always to be construed in accordance with this principle. And of course the legislature of one state has no power to punish a resident of another for a lawful act done in that state.42 The proposition, however, that a state legislature has no extraterritorial jurisdiction in criminal matters is only true where it is asserted with reference to an offense in its entirety; and there are many instances in which a state has undertaken to exercise such jurisdiction in respect to an offense, only a part of which has been committed within its limits.44 Moreover, it is held that a state may pass laws in regard to its own citizens which will be binding and obligatory on them when they are without its territorial limits, and for the violation of which they may be punished in its courts, whenever the state can find them within its jurisdiction.45

474.

forbids, in unqualified terms, the doing of an act, it must always be understood that the thing is only forbidden within this state.' Bronson, J., in Charles v. Peo., 1 N. Y. 180, 184 [quot dis. op. in Peo. v. Arnstein, 211 N. Y. 585, 594, 105 NE 814].

[a] Illustrations.-(1) Burns Rev. St. (1901) § 2178, which provides that whoever allures, entices, or persuades another to any place on any pretense, and by duress or fraud compels such person to win or lose, or to advance money, etc., is guilty of bunco steering, and on conviction shall be punished, etc., has no extraterritorial force, and the offense defined thereby cannot be committed partly in Indiand partly in another state. Cruthers v. State, 161 Ind. 139, 67 NE 930. (2) A resident of Missouri is guilty of no offense punishable in Arkansas by turning his cattle at large in Missouri and allowing them to stray across the state line into Arkansas. Beattie v. State, 73 Ark. 428, 84 SW 477.

ana

[b] Extraterritorial forgery of instrument affecting land title.-It has been held, however, that the forgery in one state of titles to lands in another state, or of any instrument affecting the titles to lands therein, is an offense against the laws of the latter state, and subject to the jurisdiction of its courts. Hanks v. State, 13 Tex. A. 290 (where the court discusses the reason and soundness of this rule).

42. Beattie v. State, 73 Ark. 428, 84 SW 477.

43. Tyler v. Peo., 8 Mich. 320, 342; State v. Clark. 178 Mo. 20, 76 SW 1007; State v. Carter, 27 N. J. L. 499; Peo. v. Merrill, 2 Park. Cr. 590 [rev on other grounds 14 N. Y. 74]; State v. Knight, 1 N. C. 44.

44. Ala.-Green v. State, 66 Ala 40. 41 AmR 744.

Cal.-Peo. v. Botkin, 132 Cal. 231, 64 P 286, 84 AmSR 39.

Kan.-State v. Price, 55 Kan. 606, 40 P 1000.

Ky. Ferrill v. Com., 1 Duv. 153. Mass.-Com. v. Macloon, 101 Mass. 1, 100 AmD 89; Com. v. Parker, 2 Pick. 550.

Mich.-Peo. v. Williams, 24 Mich. 156, 9 AmR 119; Tyler v. Peo., 8 Mich. 320.

Justus, 85 Minn.

Minn. State v. 114, 88 NW 415. Mo.-Steerman v. State, 10 Mo. 503. N. J.-Hunter v. State, 40 N. J. L. 495.

N. Y.-Peo. v. Burke, 11 Wend. 129. Tex.- -Hanks v. State, 13 Tex. A. 289. W. Va.-Ex p. McNeeley, 36 W. Va. 84, 14 SE 436, 32 AmSR 831, 15 LRA 226. And see infra §§ 197-214. 45. See infra § 198.