constitution from doing so.80 A statute creating a local court, in the nature of a police court, with jurisdiction of crimes usually triable by justices of the peace, does not oust the justices' courts of jurisdiction,81 unless the intention of the legislature to that effect is expressly stated or arises by necessary implication.82

[185] E. Jurisdiction of Offenses against Different Sovereignties 3-1. Against United States and State or Territory-a. General Rule. The criminal jurisdiction of the federal courts is confined to crimes under federal statutes, except as to commonlaw offenses committed on the high seas or in places or districts within a state which have been ceded by the state to the United States, and which necessary to aver that the offence was committed more than six months before the finding of the bill and that no justice of the peace has taken official cognizance of it. That is matter of defence like the statute of limitations." Per Ashe J., in State v. Moore, 82 N. C. 659, 662. (3) Where, however, the jury in the higher court find by their verdict that the offense was committed within six months before the finding of the indictment, the case must be dismissed. State v. Berry, 83 N. C. 603.

[c] In Texas, under the general laws, the county court has concurrent jurisdiction with the justice's courts over all misdemeanors that said courts have jurisdiction finally to try. Gray v. State, (Cr.) 86 SW 764; Brady v. State, 43 Tex. Cr. 76, 63 SW 327; Ex p. Brown, 43 Tex. Cr. 45, 64 SW 249.

80. State V. Spurlock, 159 Ala. 122, 48 S 849; Peo. v. Duffy, 49 Hun 276, 1 NYS 896; State v. Lytle. 138 N. C. 738, 51 SE 66; Stoltman V. Lake. 124 Wis. 462, 102 NW 920; Heller v. Clarke, 121 Wis. 71. 98 NW 952; Shaffel v. State, 97 Wis. 377, 72 NW 888; State v. Bilder, 90 Wis. 10, 62 NW 415; Gilowsky v. Connolly, 55 Wis. 445, 13 NW 444.

81. Cal.-Ex p. Dolan, 128 Cal. 460, 60 P 1094.

Ida. State v. Raaf, 16 Ida. 411, 101 P 747.

Mass.-Com. v. Brady, 7 Gray 320;
Com. v. Pindar, 11 Metc. 539.
Mich.-Peo. v. Pond, 67 Mich. 98, 34
NW 647.

Minn.-State v. Olson, 58 431, 59 NW 1038.

Minn.

And see supra §§ 173, 177. 82. Mass.-Piper V. Pearson, Gray 120, 61 AmD 438.

2

Minn. State v. Russell, 69 Minn. 499, 72 NW 837.

N. H.-Marshall v. State, 62 N. H. 353.

N. J.-Adams v. Nash, 51 N. J. L. 305, 17 A 290; McLorinan v. Ryno, 49 N. J. L. 603, 10 A 189; Duffy v. Britton, 48 N. J. L. 371, 7 A 679.

N. Y.-Peo. v. Duffy, 49 Hun 276, 1 NYS 896; Peo. v. McDonald, 26 Hun 156; Peo. v. Whitney, 24 Misc. 264, 53 NYS 570.

[a] In Montana the police court of a city has exclusive jurisdiction of all proceedings for the violation of its ordinances, and prosecutions thereunder must be conducted in the name of the city. The police court also has concurrent jurisdiction with the justices' courts to punish vagrancy as a crime against the state, and such prosecutions must be instituted and conducted in the name of the state of Montana. State v. District Ct. 37 Mont. 202, 95 P 841.

a

there is a police justice having ability to act thereon. Peo. v. Whitney, 24 Misc. 264, 53 NYS 570, 13 N. Y. Cr. 341 [aff 32 App. Div. 144, 52 NYS 695]. (2) The power to take away the jurisdiction of a justice of the peace in criminal cases follows, by necessity, from the power to create police justice. Peo. v. Whitney, 32 App. Div. 144, 52 NYS 695. (3) Until the office of police justice is established in a village, any justice of the peace has jurisdiction to hear, try, and determine charges of misdemeanor committed in said village. Peo. v. Lovell, 21 Misc. 570, 48 NYS 879.

[c] A statute conferring exclusive jurisdiction on a police court means exclusive jurisdiction not as against all courts, but as against those of the grade of justices of the peace. State v. Jones. 73 Me. 280.

83. Concurrent and exclusive jurisdiction of state and federal governments to define and punish crime see supra § 18.

84. U. S. v. Battle, 154 Fed. 540 [aff 209 U. S. 36, 28 SCt 422, 52 L. ed. 6701; U. S. v. Tucker, 122 Fed. 518; U. S. v. Davis, 25 F. Cas. No. 14,930, 5 Mason 356 (as to punishment of offense committed in marine hospital not under sole and exclusive jurisdiction of United States); U. S. v. Shepherd, 27 F. Cas. No. 16,274, 1 Hughes 520.

85. Ex p. Ballinger, 88 Fed. 781; U. S. v. Stahl, 27 F. Cas. No. 16,373, Woolw. 192, McC. (Kan.) 206; U. S. v. Tierney, 28 F. Cas. No. 16,517, 1 Bond 571; Peo. v. Lane, 1 Edm. Sel. Cas. (N. Y.) 116.

[a] Adultery, (1) being an offense arising out of the marriage relation, is cognizable only in the state courts, except in the territories, forts, arsenals, customhouses, or other places where the United States has exclusive jurisdiction, in which places congress may pass laws defining the offense and prescribing the punishment. Southern Surety Co. v. State. 34 Okl. 781, 127 P 409. (2) Prior to the admission of Oklahoma as a state, the crime of adultery in Indian Territory was an offense against the federal statute, but by the Enabling Act all persons charged therewith at the time of statehood were thereafter properly prosecuted in the district courts of the state, unless the offense was committed in some part over which the federal government retained exclusive jurisdiction. Southern Surety Co. v. State, supra.

[b] Bribe to federal officer.-Rev. St. § 5451, making it a crime to offer to bribe an officer of the United States with intent to influence him to do an act in violation of his duty, does not apply to the offer of a bribe to influence him to set fire to a distillery, and is not triable in a federal court. U. S. v. Gibson, 47 Fed. 833. See Bribery § 6.

[b] Session of state court in federal building.-The fact that a state court, with the consent and permission of the authorized agent of the federal government, holds its sessions in a building on land which has been ceded to the federal government by the state legislature for a customhouse does not prevent a state court from having jurisdiction of perjury committed while the court was in session. Exum v. State, 90 Tenn. 501, 17 SW 107, 25 AmSR 700, 15 LRA 381.

the duty, or within the power, of the United States to punish for a conspiracy to falsely imprison ог murder within a state than it would be to punish for false imprisonment. U. S. v. Cruikshank, 92 U. S. 542, 23 L. ed. 588.

86. Thomas v. Loney, 134 U. S. 372, 10 SCt 584, 33 L. ed. 949: Ross v. State, 55 Ga. 192, 21 AmR 278; U. S. v. Campbell, Tapp. (Oh.) 61. See also supra, §§ 18, 174.

87. U. S.-Sexton V. California, 189 U. S. 319, 23 SCt 543, 47 L. ed. 833; Pettibone v. U. S., 148 U. S. 197, 13 SCt 542, 37 L. ed. 419; Thomas v. Loney, 134 U. S. 372, 10 SCt 584. 33 L. ed. 949; U. S. v. McClellan, 127 Fed. 971; In re Fair, 100 Fed. 149; U. S. v. Lackey, 99 Fed. 952 [rev on other grounds 107 Fed. 114, 46 CCA 189, 53 LRA 660 (certiorari den 181 U. S. 621, 21 SCt 925, 45 L. ed. 1032)]; U. S. v. Wells, 28 F. Cas. No. 16,665.

Cal-Peo. V. McDonnell, 80 Cal. 285, 22 P 190, 13 AmSR 159.

[c] Persons who conspire to deprive a prisoner in the custody of a United States marshal of his constitutional right to a speedy and pub[b] In New York (1) under L. lic trial are offenders under Rev. (1897) c 414 § 182, giving a police St. § 508; and where under such justice of a village exclusive juris- conspiracy murder is committed by diction to try charges of misdemean- them, they are liable to be tried ors committed within the village, a and punished in the federal court justice of the peace has no authority under Rev. St. § 5509. U. S. v. Loto try a charge for a misdemeanor gan, 45 Fed. 872 [rev on other committed within a village, when grounds 144 U. S. 263, 12 SCt 617, 36

Ind. Southern R. Co. v. State R. Commn., 179 Ind. 28, 100 NE 337; Dashing v. State, 78 Ind. 357. Va.-Jett v. Com., 18 Gratt. (59 Va.) 933.

Wash.-State v. Coss, 12 Wash. 673,

a crime, the state court may have jurisdiction of another phase of the same crime.88 A state court may, in the first instance, decide whether the offense charged is an offense against the state laws or such as is made exclusively cognizable in the courts of the United States, subject to the review of the highest court of the state by the United States supreme court.89

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.90 [186] b. Mail Service. A state court has no jurisdiction over the crime of feloniously robbing the mails, which is an offense created by United States statute.91 Nor is a prosecution for stealing postage stamps within the jurisdiction of the state courts, if such stamps were in fact the property of the government.92 But state courts have jurisdiction of the crime of burglary notwithstanding the building entered is used as a post office,93 and of murder committed in derailing a mail train;

and

the crime of impersonating another and opening his letters for the purpose of prying into his affairs, which is an offense at common law, has been held not to be within the exclusive jurisdiction of the United States court, although by act of congress such offense is a crime.95 Moreover, the state may punish for a crime committed through the mails as a medium, without in any sense impinging upon the undoubted right of the national government to control the mails.98

[187] c. Distribution of Public Lands. A state court has no jurisdiction of perjury committed in a proceeding relative to the sale or preemption of public land under federal statutes;97 but, where congress has not declared that some act done in relation to such sale or preemption shall be a crime, it may be punished by the state courts when

42 P 127.

See also supra §§ 18, 174.

[a] Illustrations. (1) The United States courts do not have exclusive jurisdiction of the offense of obtaining money under the false pretense of being a pension agent. Pearce v. State, 115 Ala. 115, 22 S 502. (2) So an act of the territory of Montana which made it a felony to sell liquor to an Indian was held to be constitutional, although congress had passed a statute making the act a crime. Terr. v. Guyott, 9 Mont. 46. 22 P 134.

88. Peo. v. Welch, 141 N. Y. 266, 36 NE 328, 38 AmSR 793, 24 LRA 117. See also supra §§ 18, 174.

[a] Manslaughter by pilot. A homicide resulting from the willful negligence of a pilot in navigating a boat on a river within the boundaries of a state is within the jurisdiction of a state court, and such jurisdiction is not ousted by U. S. Rev. St. 5344, which provides that every pilot by whose misconduct, negligence, or inattention to his duty the life of any person is destroyed is guilty of manslaughter, as the offense charged in the indictment in the state court was a willful and felonious assault and differed from that provided for by the Revised Statutes. Peo. v. Welch, 141 N. Y. 266, 36 NE 328, 38 AmSR 793, 24 LRA 117 [aff 74 Hun 474, 26 NYS 694]; In re Welch, 57 Fed. 576.

[b] Murder committed by derailing a mail train is punishable as such in the state courts, although the act is also an offense against the laws of the United States. Crossley v. California. 168 U S. 640, 18 SCt 242,

42 L. ed. 610.

it is a crime under state statutes.98 [188] d. Perjury or False Swearing. A witness who gives his testimony in a matter pending in a court of the United States or before a judicial tribunal of that sovereignty is accountable for the truth of his testimony only to the United States, and perjury committed in so testifying is a crime against the laws of the United States only, and the prosecution therefor is within the exclusive jurisdiction of its courts." So also it has been held that a state court has no jurisdiction of a prosecution for perjury in making a false oath before a clerk administering the oath under authority conferred upon him by the Homestead Act of congress, or in swearing falsely before the register of the United States land office in a proceeding touching the public land,2 or before a commissioner of the United States in a proceeding for violation of an act of congress,3 or in an examination before a commissioner in bankruptcy appointed under an act of congress, or before a notary public or other officer designated by congress to take depositions in case of a contested election of a member of congress.5 State courts acting in the naturalization of aliens, pursuant to the authority given by congress, remain state tribunals, and do not become in any degree courts of the United States; and hence a perjury committed in such proceedings is an offense against the state, and not against the federal sovereignty; and, in the absence of statute conferring jurisdiction on the federal courts, it is exclusively a matter of state cognizance."

91. State v. McBride, 24 S. C. L. 400; Com. v. Feely, 1 Va. Cas. (3 Va.) 321.

92. Ex p. Roach, 166 Fed. 344. 93. Peo. v. Burke, 161 Mich. 397, 126 NW 446.

94. Crossley v. California, 168 U. S. 640, 18 SCt 242, 42 L. ed. 610.

95. Gill's Case, 3 City Hall Rec (N. Y.) 61; Noah's Case, 3 City Hall Rec (N. Y.) 13; State v. Wells, 20 S. C. L. 687.

96. Rose v. State, 4 Ga. A. 588, 62 SE 117. See infra § 199.

[a] Freedom to use the mails does not extend to their use as a means of committing crime. Rose v. State, 4 Ga. A. 588, 62 SE 117.

97. State v. Kirkpatrick, 32 Ark. 117; Peo. v. Kelly, 38 Cal. 145, 99 AmD 360; State v. Adams, 4 Blackf. (Ind.) 146. And see infra § 188.

98. State v. Glasgow, 1 N. C. 176, 2 AmD 629; Com. v. Schaffer, 4 Dall. (Pa.) appendix xxvi, 1 L. ed. 926.

99. McIntosh v. Bullard, 95 Ark. 227, 129 SW 85; State v. Shelley, 11 Lea (Tenn.) 594.

1. State v. Kirkpatrick, 32 Ark. 117.

2. Peo. v. Kelly, 38 Cal. 145, 99 AmD 360; State v. Adams, 4 Blackf. (Ind.)_146. And see supra § 187.

3. Ex p. Bridges, 4 F. Cas. No. 1,862, 2 Woods 428; Com. v. Kitchen, 141 Ky. 655, 133 SW 586.

4. State v. Pike, 15 N. H. 83. 5. Thomas v. Loney. 134 U. S. 372, 10 SCt 584, 33 L. ed. 949 [aff 38 Fed. 101].

6. U. S. v. Severino, 125 Fed. 949. See Aliens § 169.

7. State V. Harmon, 104 N. C. 792, 10 SE 474 (holding that steal

have exclusive jurisdiction to try the crime of embezzlement of the funds of a national bank by its officers. But it has been held that a state court is not precluded from taking jurisdiction of the offense of forging promissory notes payable to a national bank by the fact that defendant made false entries in the books of such bank in violation of the federal statute."

[§ 191] g. Ambassadors and Consuls. It remained the accepted law until 1875 that the federal courts had exclusive jurisdiction of offenses by consuls, whether at common law or under state or United States statutes. The ordinary rule that the United States could not punish common-law or state offenses did not apply.10 Since the act of 1875,11 it is open to question whether the jurisdiction of the federal courts over consular offenses is now concurrent with the state courts, or exclusive of the state courts.12 But even though criminal offenses by consuls may still be exclusively triable in the federal courts, under §§ 563 and 711 of the Revised Statutes, the exclusion of state authority by § 711 is limited to the exclusion of "the jurisdiction of state courts," and is not applicable to preliminary proceedings in extradition, or to a commitment by magistrates not acting as a court.13

[192] h. Federal Elections. The United States court has jurisdiction of crimes arising out of the interference with or the resisting of federal officials in the performance of their duty at a congressional election,14 but the state courts have juing distilled spirits from a government warehouse may be larceny, triable in the state courts, although indictable under U. S. Rev. St. § 3296, making it an offense to remove them from such warehouse before the tax is paid).

8.

State v. Tuller, 34 Conn. 280; Com. v. Felton, 101 Mass. 204; Peo. v. Fonda, 62 Mich. 401, 29 NW 26; Com. v. Ketner, 92 Pa. 372, 37 AmR 692. Compare Com. v. Barry, 116 Mass. 1 (holding that the fact that a person who has stolen property belonging to a national bank is an officer of the bank and subject to punishment for embezzlement, under 13 U. S. St. at L. 116 c 106 § 55, does not relieve him from his liability to punishment for the same act as a larceny at common law or under the statutes of a state). See supra § 18; and generally Banks and Banking $705.

9. Cross v. N. C., 132 U. S. 131, 10 SCt 47, 33 L. ed. 287.

10. In re Iasigi, 79 Fed. 751; U. S. V. Benner, 24 F. Cas. No. 14,568, Baldw. 234; U. S. v. Liddle, 26 F. Cas. No. 15,598, 2 Wash. C. C. 205; U. S. v. Ortega, 27 F. Cas. No. 15,971, 4 Wash., C. C. 531 [aff on this point 11 Wheat. 467, 6 L. ed. 521]; Com. v. Kosloff, 5 Serg. & R. (Pa.) 545.

risdiction of the offense of fraudulent voting and other offenses at elections for presidential electors.15

[193] i. Counterfeiting. The jurisdiction of the federal courts over offenses against the laws of congress providing for the punishment of counterfeiting the current coin of the United States is not exclusive of the jurisdiction of the state courts over offenses against state laws, making it punishable to counterfeit such coin.16 The use as money of an instrument which does not possess the requisite similitude to some national obligation or security to perpetrate a common-law cheat is not an offense against the United States, but is solely within state authority.17

[§ 194] 2. Offenses against State and Municipality. Where a statute confers jurisdiction on a court to try and to determine offenses against the state, it will be presumed that such jurisdiction is concurrent with a municipal court enforcing an ordinance which provides for the punishment of the same criminal act;18 but the state courts have no jurisdiction where an offense is punishable only as a breach of an ordinance,19 or where the legislature has expressly given the municipal courts exclusive jurisdiction.20

[§ 195] F. Jurisdiction as Determined by Locality of Crime-1. General Rule. Since a state has no jurisdiction to punish crimes committed beyond its limits, the courts of one state have no jurisdiction to enforce the criminal laws of another state or to punish crimes committed in another state.21 368, 14 SW 38, 22 AmSR_214. Colo.-McInerney V. Denver, Colo. 302, 29 P 516. Ga.-Reich

or

a

V.

17

State, 53 Ga. 73,

21 AmR 265.
Ill. Hankins v. Peo., 106 Ill. 628;
Fant v. Peo., 45 Ill. 259; Berry v.
Peo., 36 Ill. 423.

Kan.-Rice v. State, 3 Kan. 141. Ky.-Com. v. Hunter, 41 SW 284, 19 KyL 1109.

La.-State v. Prats, 10 La. Ann.

785.

Mo.-State v. Wister, 62 Mo. 592; State v. Gordon, 60 Mo. 383.

N. J. State v. Plunkett, 18 N. J. L. 5.

Wis.-Ogden v. Madison, 111 Wis. 413, 87 NW 568, 55 LRA 506.

19. Garland v. Denver, 11 Colo. 534, 19 P 460.

20. State v. Gordon, 60 Mo. 383; State v. Threadgill, 76 N. C. 17; State v. White, 76 N. C. 15. See also Municipal Corporations [28 Cyc 696 et seq].

21. Ark.-Beattie v. State, 73 Ark. 428, 84 SW 477.

Conn.-Gilbert v. Steadman, 1 Root

403.

D. C.-Brown v. U. S., 35 App. 548, AnnCas1912A 388.

Ga.-Jemmerson v. State, 80 Ga. 111, 5 SE 131.

Ind. Stewart v. Jessup, 51 Ind. 413, 19 AmR 739; Johns v. State, 19 Ind. 421, 81 AmD 408.

Kan.-Ex p. Carr, 28 Kan. 1. Ky.-O'Bannion v. Com., 113 SW 907; Hylton v. Com., 91 SW 696, 29 KyL 64.

La.-State v. Rednnals, 14 La. Ann.

278.

Mass.-Com. v. Macloon, 101 Mass.

1, 100 AmD 89 (where the crime was partly within and partly outside the state).

Mich.-Tyler v. Peo., 8 Mich. 320; Peo. v. Tyler, 7 Mich. 161, 74 AmD 703.

Mo.-State v. Gritzner, 134 Mo. 512, 36 SW 39; State v. Johnson, 115 Mo. 480, 22 SW 463; State v. Shaeffer, 89 Mo. 271, 1 SW 293.

N. Y.-Peo. v. Arnstein, 211 N. Y. 585 mem, 105 NE 814 [rev 157 App.

[ 196] 2. Federal Courts. So with the exception of the jurisdiction exercised over crimes on the high seas or by treaty stipulation in foreign countries the jurisdiction of the federal courts is limited to the territory of the United States.22 Other questions as to the jurisdiction of the federal courts are treated in the sections following.23

[197] 3. Locality of Offenses-a. In General. The locality of an offense is the place where the act or acts constituting the same are committed;24 but it is sometimes difficult to apply this rule to particular crimes,25 and to determine the locality of a crime where several persons participate at different places.20

[198] b. Offenses by Persons beyond State Boundaries. Although the general rule is that a state or sovereignty cannot punish for offenses committed beyond its territorial limits,27 it may pass laws in regard to its own citizens which will be binding and obligatory on them when they are beyond such limits, and for the violation of which they may be punished in its courts, whenever it can find Div. 766, 142 NYS 8421; Manley 608. v. Peo., 7 N. Y. 295; Peo. v. Merrill, 2 Park. Cr. 590 [rev on other grounds 14 N. Y. 74].

C.

N. C.-State V. Hall, 114 N. C. 909, 19 SE 602, 41 AmSR 822, 28 LRA 59; State v. Mitchell, 83 N. 674; State v. Knight, 1 N. C. 44. Pa. Com. v. Kunzmann, 41 Pa. St. 429.

Va.-Chesapeake, etc., R. Co. V. American Exch. Bank, 92 Va. 495, 23 SE 935, 44 LRA 449; Com. V. Gaines, 2 Va. Cas. (4 Va.) 172; Jackson v. Rose, 2 Va. Cas. (4 Va.) 34. Eng. Reg. v. Garrett, 6 Cox C. C. 260, 22 Eng L&Eq 607; Rex v. Munton, 1 Esp. 62; Rex v. Hooker, 7 Mod. 193, 87 Reprint 1184; Musgrave v. Medex, 19 Ves. Jr. 652, 34 Reprint 657. 22. U. S. v. Smiley, 27 F. Cas. No. 16,317, 6 Sawy. 640.

23. See infra § 197 et seq. 24. State v. Stow, 83 N. J. L. 14, 84 A. 1063; and other cases infra §§ 198-214.

Locality within the state or venue see infra § 260 et seq.

25. See infra §§ 200-214. 26. See infra 88 198, 199. 27. See supra § 169.

28. U. S. V. Dawson, 15 How (U. S.) 467, 14 L. ed. 775; U. S. Rev. St. § 4083, 4084, 4088, 5335; Com. v. Gaines, 2 Va. Cas. (4 Va.) 172; State v. Main, 16 Wis. 398; St. 9 Geo. IV c 31 § 7 (punishing murder abroad of one British subject by another); Reg. y Azzopardi, 1 C. & K. 203, 47 ECL 203; Rex. v. Sawyer, R. & R. 218. 29. U. S.-Strassheim v. Daily, 221 U. S. 280, 31 SCt 558, 55 L. ed. 735; U. S. v. Davis, 25 F. Cas. No. 14,932, 2 Sumn. 482.

Cal.-Ex p. Hedley, 31 Cal. 108. Conn.-State v. Grady, 34 Conn.

118.

Ga-Simpson v. State, 92 Ga. 41, 17 SE 984, 44 AmSR 75, 22 LRA 248. Ind. Johns v. State, 19 Ind. 421, 81 AmD 408.

Kan. In re Fowles, 89 Kan. 430, 131 P 598, 47 LRANS 227.

Mass.-Com. v. White, 123 Mass. 430, 25 AmR 116; Com. v. Smith, 11 Allen 243; Com. v. Blanding, 3 Pick. 304, 15 AmD 214.

N. J.-Noyes v. State, 41 N. J. L. 418 [aff 43 N. J. L. 672]. N. Y.-Peo. v. Adams, 3 Den. 190, 45 AmD 468 [aff 1 N. Y. 173].

N. C.-State v. Hall, 114 N. C. 909, 19 SE 602, 41 AmSR 822, 28 LRA 59.

Oh.-State v. Sanner, 81 Oh. St. 393, 90 NE 1007, 26 LRANS 1093; Lindsey v. State, 38 Oh. St. 507; Robbins v. State, 8 Oh St. 131.

S. C.-State v. Morrow, 40 S. C. 221, 18 SE 853.

Tex.-Rogers v. State, 11 Tex. A.

them within its jurisdiction.28 Aside from this, where a person, being beyond the limits of a state or country, puts in operation a force which produces a result and constitutes a crime within those limits, he is as liable to indictment and punishment, if jurisdiction can be obtained of his person, as if he had been within the limits of the state or country when the crime was committed.29

Through innocent agent. This is true of crimes committed by means of an innocent agent. Where a person outside of a state procures a crime to be committed within the state by means of an innocent agent, he is responsible in such state as a principal.30

Through criminal agent. By the weight of authority, where a person outside of a state procures a felony to be committed in the state by a criminal agent, or conspires with others in the state to commit a crime, he is an accessary before the fact and triable as such in the state where he instigates or suggests the crime, and not in the state where the crime is committed by the principal,31 unless by ex

608.

to have been committed and that the trial of the accessory may be had in a county in this State. The provision is, that in the cases provided for, the trial shall be had in either of the two counties mentioned, viz.: the county in which the commission of the principal offence was planned or procured by the accessory, or that in which the principal offence was actually committed. A construction that would give a right of trial in either county, in a case like the present, would involve the absurdity of a provision for the trial of the offence in another State in which the aid was given, or the commission of the offence was procured").

N. J.-State v. Wyckoff, 31 N. J. L. 65, 69 (where the court said: "If, then, the accessory by the common law was answerable only in the county in which he enticed the principal, and that, too, when the criminal act was consummated in the same county, it would seem to follow necessarily in the absence of all statutory provision, that he is wholly dispunishable when the enticement to the commission of the offence has taken place, out of the state in which the felony has been perpetrated. Under such a condition of affairs it is not easy to see how the accessory has brought himself within the reach of the laws of the offended state. His offence consists in the enticement to commit the crime; and that enticement, and all parts of it, took place in a foreign jurisdiction. As the instrumentality employed was a conscious guilty agent, with free will to act or to refrain from acting, there is no room for the doctrine of a constructive presence in the procurer. Applying to the facts of this case the general and recognized principles of law, it would seem to be clear that the offence of which the defendant has been guilty is not such as the laws of this state can take cognizance of. We must be satisfied to redress the wrong which has been done to one of our citizens, and to vindicate the dignity of our laws by the punishment of the wrong-doer who came within our territorial limits. As for the defendant, who has never been. either in fact or by legal intendment, within our jurisdiction, he can be only punished by the authority of the state of New York, to whose sovereignty alone he was subject at the time he perpetrated the crime in question").

N. Y.-Peo. v. Hall, 57 HowPr 342. And see Peo. v. Rathbun, 21 Wend. 509.

N. C.-State v. Knight, 1 N. C. 143 (power to punish acts committed in another state).

38

[§ 199] c. c. Offenses Committed by Use of the Mails. The jurisdiction to try an offense committed by means of the United States mail depends upon where the offense was consummated.35 The place of the mailing determines the jurisdiction in the crime of transmitting false papers to the pension office,36 sending a letter containing obscene matter,37 promoting a scheme to defraud, knowingly depositing or causing to be deposited lottery matter in the mails, or sending such matter or causing it to be sent by mail.39 On the other hand, the crime of causing lottery matter to be delivered by mail is committed in the state where the letter is received, although it was mailed elsewhere.40 The offense of attempting to bribe an officer of the United States is committed both in the state where the letter is mailed,11 and in the state where it is

received.42 It has been held that a person who mails a letter in one state, advising another to register for voting purposes, in violation of the law of that state, cannot be prosecuted there for the offense of counseling and advising one to register illegally where the letter is addressed to such other in another state and is there received by him.43 If a criminal act put in operation by use of the mail outside the state produces within the state a result constituting a crime, the user of the mail is guilty as principal on the ground that the post office is an innocent agent.44

[§ 200] d. Particular Offenses45-(1) Abandonment of Wife or Children. A man may be guilty of the crime of failing to provide for his wife or his minor children, although he is a resident of another state during the time laid in the indictment. But the courts of one state cannot take cognizance of the offense of abandonment where it was wholly consummated in a foreign state,*7 although subsequently, on the removal of his family to the former state, defendant refused to maintain them.48 In some jurisdictions, however, a resident may be prosecuted for failure to furnish support, although the original abandonment or desertion occurred in another state,49 or although his minor child resides outside the state in which the proceed

Eggleston, 128

[a] Contrary view.-State v. Grady, | 561, 65 AmD 452. 34 Conn. 118 (holding that if a fel- Ga.-Duckett v. ony is committed in one state by 21 SE 73. the procuration of a resident of another state, who does not himself | personally come into the first state to assist in the felony, such nonresident can be punished in the state where the felony is committed, if jurisdiction can be obtained of his person, although the person actually committing the felony is a guilty agent, and the nonresident is merely an accessary before the fact). See also State v. Cassady, 12 Kan. 550 (quære, the court seeming inclined to a contrary opinion to that stated in the text).

32. Cruthers v. State, 161 Ind. 139. 67 NE 930; State v. Chapman, 6 Nev. 320; State v. Felch, 58 N. H. 1.

[a] In Indiana it has been held that the statute (2 Rev. St. [1852] p 361 § 2) providing that "every person being without this state, committing or consummating an offense by an agent or means within the state, is liable to be punished by the laws thereof, in the same manner as if he were present. and had commenced and consummated the offense within the state," did not apply to one who in another state, as accessary before the fact, procured the commission of a felony in Indiana. Johns v. State, 19 Ind. 421, 81 AmD 408.

in

[b] In Nevada, under a statute abolishing the distinction between accessaries before the fact and principals, and providing for the indictment, punishment, etc., of accessaries as principals, it is held that one who in another state procures or abets the commission of a felony in 'Nevada is indictable and punishable the county in which the felony was committed. State v. Chapman, 6 Nev. 320 (where the court says that there seems to be an incongruity between St. [18611 $ 252 abolishing the distinction between principals and accessaries, and Cr. Pr. Act § 91. which requires an accessary before the fact to be tried where his offense is committed, but holds that the latter section does not apply where the accessorial acts were committed outside the state).

33. See supra § 101.

St. 393, 90 NE 1007, 26 LRANS 1093. State, 93 Ga. 415, But see Peo. v. Herrick, 200 Ill. A. 428; Ex p. Kuhns, 36 Nev. 487, 491, 137 P 83, 50 LRANS 507 (where on a habeas corpus proceeding instituted by a person whose extradition was sought by the state of Pennsylvania, the court said: "There is no principle of the law relating to agency or accessory by which the petitioner can be held. He did not, with the assistance of any other person in Pennsylvania, commit the offense charged after he came to Nevada").

507.

47. Peo. v. Flury, 173 Ill. A. 640; State v. Shuey, 101 Mo. A. 438, 74 SW 369; State v. Weber, 48 Mo. A. 500; Bayne v. Peo., 14 Hun (N. Y.) Peo. V. Vitan, 10 NYS 909; State v. Toney, 162 N. C. 635, 78 SE 156 (wife abandonment). And see Peo. v. Clairmont, 58 Misc. 517, 111 NYS 613 (a proceeding involving a warrant for the seizure of property of the husband and father); In re Poage, 87 Oh. St. 72, 83, 100 NE 125 (where it was said: "It is also the law of this state that a parent may be guilty of the crime of failing to provide for his minor children, although he is residing in another state during the time laid in the indictment and that the venue of the crime is properly laid in the county where the child is domiciled when the complaint is made. Because this is true it by no means follows that the legislature of this state has the power and authority to control the domestic relations of citizens of another state not residing in this state and who never have resided in this state, or to compel by law the performance of any duties and obligations of parents to their minor children arising from the laws of this state when the legal residence of both parent and child is in another state, and where the defendant is not responsible either by acts of commission or omission for the child being temporarily in this state").

48. Jemmerson v. State, 80 Ga.

111, 5 SE 131.

49. State v. McCullough, 17 Del. 274. 40 A 237; Com. v. Hart, 12 Pa. Super. 605; Com. v. Shaffer, 22 Pa. Dist. 573; Com. v. Thatcher, 19 Pa. Dist. 985; Barnes v. Com., 11 WklyNC (Pa.) 375. But see Com. v. Bailey,