[260] A. Place of Bringing Prosecution-1. Common-Law Rule. Generally speaking, it is a fundamental rule of criminal procedure that one who commits a crime is answerable therefore only in the jurisdiction where the crime is committed, and in all criminal prosecutions, in the absence of statutory provision to the contrary, the venue must be laid in the county or district of the offense, and must be proved as laid.17

Crimes committed in another state. No crime committed within the territorial limits of one sovereign state can be tried in any other, for penal laws of every sovereign state are, in the strictest

[261] 2. Constitutional and Statutory Provisions. In the United States most of the state constitutions and declarations of rights expressly provide in substance that all criminal prosecutions shall be brought to trial in the county in which the crime shall have been committed; and provision in accordance therewith is generally embodied in the statutes and criminal codes. These provisions are strictly construed in favor of accused and with a recognition of the principles of the common law, and the legislature cannot authorize a trial in any 302, 65 SW 920, 96 AmSR 873.

22. Ark.-Walls v. State, 32 Ark. 565; Dougan v. State, 30 Ark. 41. Fla.-O'Berry v. State, 47 Fla. 75, 36 S 440.

Ga. Tarver v. State, 123 Ga. 494, 51 SE 501; Dempsey v. State, 94 Ga. 766, 22 SE 57.

Ill. Buckrice v. Peo., 110 Ill. 29. Kan.-State v. Knapp, 40 Kan. 148, 19 P 728; State v. Potter, 16 Kan. 80. La.-State v. Moore, 140 La. 281, 72 S 965.

Mich.-Peo. v. Brock, 149 Mich. 464, 112 NW 1116, 119 AmSR 684.

Mo.-State V. Mispagel, 207 Mo. 557, 560, 106 SW 513 [quot Cyc]; State v. Gorman, 191 Mo. 150, 90 SW 100; State v. Meyers, 191 Mo. 149, 90 SW 100; State v. Clarke, 191 Mo. 148, 90 SW 100; State v. Anderson, 191 Mo. 134, 90 SW 95; State v. Smiley, 98 Mo. 605, 12 SW 247; State v. Hatch, 91 Mo. 568, 4 SW 502 (holding unconstitutional a statute authorizing an indictment to be found in one of two or more counties where there is doubt as to where the offense was committed); Ex p. Slater, 72 Mo. 102; In re McDonald, 19 Mo. A. 370. Nebr.-State v. Crinklaw, 40 Nebr. 759, 59 NW 370.

N: Y.-Peo. V. Downs, 136 NYS 440.

S. C.-State v. McCoy, 98 S. C. 133,

23. Watt v. Peo., 126 Ill. 9. 18 NE 340, 1 LRA 403; Campbell v. Peo., 109 111. 565, 50 AmR 621; Hays v. Com., 14 SW 833, 12 KyL 611; Roach v. State, 5 Coldw. (Tenn.) 39; Hubbard v. Lord, 59 Tex. 384; Moore v. State, 37 Tex. Cr. 552, 40 SW 287. And see other cases in preceding note.

other county.22 Some of these statutes provide that the local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where the offense is committed.23 It has been held, however, that it is not unconstitutional to permit the trial of an offense committed in an unorganized territory in an organized county to which it is attached,24 or to create a district out of part of a county and limit the selection of grand and petit jurors of that district to the territory comprising the same.25 And so it has been held of other committed, and that to allow this constitution, although applied to a prosecution to proceed in the state of crime committed by a convict in anMississippi, when the offense was other county. Ruffin v. Com., 21 committed in Arkansas, would be Gratt. (62 Va.) 790. violative of the constitution by allowing the state to prosecute in a county other than the one in which the offense was committed. The answer to this argument is that the act of 1910 expressly extends the counties of Mississippi, lying immediately on the Mississippi river, so as to give them criminal jurisdiction within the territory embraced by extending their boundary lines in a continuous and direct course to the extreme western bank of said river where it touches the state of Arkansas. In other words, the county limit is coextensive, immediately in front of it, with the jurisdiction given to the state of Mississippi, in SO far as these prosecutions are concerned. The state has the power to extend its county lines as far as it deemed desirable, without any right in any subsequent criminal to complain. The state is prosecuting in its own name for an offense committed within its jurisdiction and within the jurisdiction of the county where the offense was committed"). [c] In Porto Rico Code Cr. Proc. § 8 provides that the jurisdiction of an offense shall be in the district court of the district where the offense has been committed. Peo. v. Nogueras, 23 Porto Rico 309.

[d] "The county where the crime is committed is, in the meaning of the constitution, that political subdivision of the State, styled county which embraces the place where the crime was committed," Per Cobb, P. J., in Pope v. State, 124 Ga. 801, 810, 53 SE 384, 387, 110 AmSR 197, 4 AnnCas 551.

[e] Judicial districts.-(1) The provisions of a state constitution giving accused the right to a trial by a jury of the county do not require that the trial shall take place within the judicial district where the indictment is found. State v. McCarty, 52 Oh. St. 363, 39 NE 1041, 27 LRA 534. (2) But when the laws create two judicial districts in any county the effect is the same, as to jurisdiction, as if there were two counties. An offense committed in one judicial district must be tried in the district in which the offense was committed, and cannot be tried in the other. Parrett v. State, 101 Miss. 306, 58 S 1; Spivey v. State, 58 Miss. 858. (3) And where accused is enthe crime was committed, it means the particular territory that is in the jurisdiction of the court, including unorganized territory attached to a county for judicial purposes. State v. Crinklaw. 40 Nebr. 759, 59 NW 370; Dodge v. Peo., 4 Nebr. 220.

[b] In Mississippi L. (1910) c 141, authorizing the prosecution of an of-titled to a trial in the district where fense committed on the Arkansas side of the Mississippi river, is not violative of Const. (1890) § 26, guaranteeing to each person a trial in the county where the offense is committed, since such statute expressly extends the boundaries of the counties of Mississippi so as to give them criminal jurisdiction over the Mississippi river to the opposite Arkansas bank. State v. Cunningham, 102 Miss. 237, 257, 59 S 76, AnnCas1914D 182 (where the court said: "But it is argued that section 26 of the constitution of the state of Mississippi guarantees to each person 'a speedy and public trial by an impartial jury of the county where the offense was

[f] Trial of convict.-Inasmuch as the constitutional provision is applicable to freemen and not to convicts, who by reason of their crimes have forfeited all rights except so far as the state grants them by favor, a statute providing that a court in the county where a penitentiary is located shall have jurisdiction of all criminal proceedings against them does not violate the

[a] Except when "otherwise provided."-In Connecticut the statute (Gen. St. § 1618), providing that every person charged with an offense shall be tried in the county where the offense was committed, except when "otherwise provided," means when otherwise provided by statute. State v. Meehan, 62 Conn. 126, 25 A 476.

[b] In Illinois it has been held that while at common law, and under the rule established by both the former constitutions criminal offenses were regarded as strictly local and subject to prosecution only in the counties in which they were committed, the present constitution vests in the general assembly the power to change that rule to such extent as that body may see proper. The general assembly may now determine, by law, when offenses are to be deemed to be local and when, and within what limitations, they are to be treated as transitory. Under the provision of the present constitution that "in all criminal prosecutions the accused shall have a right to ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed," a prosecution may now be had in the county in which the offense is alleged in the indictment to have been committed. Watt v. Peo., 126 Ill. 9, 18, 18 NE 340, 1 LRA 403.

[c] In Texas (1) as to venue in all cases not specifically named in the code, the proper county for the prosecution is that in which the offense was committed. Sims v. State, 28 Tex. A. 447, 13 SW 653 (where it was held that swindling was not one of the offenses enumerated and must be prosecuted in the county in which the property was acquired). (2) "All the decisions of our own courts on this question of venue agree that our statute is obligatory, and that the offense is punishable in the county where committed, except as provided by special statutes." Moore v. State, 37 Tex. Cr. 552, 563, 40 SW 287.

24. In re Moran, 203 U. S. 96, 27 SCt 25, 51 L. ed. 105; In re Holcomb, 21 Kan. 628; Portales First Nat. Bank v. McElroy, 51 Tex. Civ. A. 284, 112 SW 801.

[a] Time of attachment.-The place of trial of a crime committed in territory not embraced in any organized county is in the county to which such territory shall be attached at the time of trial, although it might have been attached to another county when the crime was committed. In re Moran, 203 U. S. 96, 27 SCt 25, 51 L. ed. 105.

25. Walker v. State, 35 Ark. 386. Compare Sproule v. Reg., 1 B. C. Pt.

statutes.26 Where the constitution contains no provision requiring accused to be tried in the county of the commission of the crime, the legislature may fix or may allow the venue in any other county.27 And the same is true where, under the constitution, the place of trial is subject to legislative determination.28 A statute providing that an indictment for an offense "may" be found and tried in the county where the offender resides, or where he is apprehended, is not in derogation of the commonlaw right of indictment and trial in the county where the offense is committed, but merely enlarges the jurisdiction of the court, and it does not prevent an indictment in the county where the offense was committed.29

Offense against municipal law. This right, however, does not obtain where the offense is against a municipal law.30

Waiver of right. The right which the constitution gives to a defendant to be tried in the county II 219 (holding that the provisions of the Jurors' Act, of 1883 limiting the selection of jurors to certain portions of the county on Vancouver Island were valid).

26. See infra § 280 (as to larceny); § 275 (as to homicide); § 295 (as to offenses near county lines); § 297 (as to offenses on public conveyances).

27. Eckermann v. State, 57 Tex. Cr. 287, 123 SW 424; Dies v. State, 56 Tex. Cr. 32, 117 SW 979; Bartlett v. State, (Tex. Cr.) 53 SW 629; Mischer v. State, 41 Tex. Cr. 412, 53 SW 627; Cohen v. State, 20 Tex. A. 224; Cox v. State, 8 Tex. A. 254, 34 AmR 746; Ham v. State, 4 Tex. A. 645.

[a] In North Carolina.-Revisal (1905) § 3233, authorizing an indictment for lynching to be brought by the grand jury of a county adjoining the one where the crime was committed, is not an improper exercise of legislative power. State v. Lewis, 142 N. C. 626, 55 SE 600, 7 LRANS 669, 9 AnnCas 604.

[b] Retrospective effect of statute. -A statute fixing the county in which an offense may be prosecuted does not apply to offenses committed prior to its enactment. State V. Sweat, 16 S. C. 624.

28. Ex p. McDonald, 20 Cal. A. 641, 129 P 957.

29. State v. Sweetsir, 53 Me. 438. 30. Gower v. Agee, 128 Mo. A. 427, 436, 107 SW 999 (where the court said: "No ancient or statutory right or principle of law is violated in the investiture by the Legislature of municipal courts with jurisdiction over offenses against police regulations which may embrace territory situated in two or more counties. The Legislature had the power to delegate to the village of Gower the right to enforce its police regulations within prescribed limits and regardless of the county line").

[a] In Arkansas the act of Jan. 11, 1853, vesting in the mayor's court of a city original jurisdiction concurrently with the circuit court, of all offenses against the laws of the state lower than the grade of felony, committed within the limits of the city, subject only to the appellate Jurisdiction of the supreme court, and providing for a grand jury, is not obnoxious to the provision of the Declaration of Rights, guaranteeing to an accused a trial by a jury of the county or district in which the crime shall have been committed, etc. Rutzell v. State, 15 Ark. 67.

213.

in which the offense was committed is a personal privilege and may be waived by him.31

[§ 262] 3. Venue of Particular Offenses in General.32 An offense is committed of course in that county in which the acts constituting the same are done, and where the acts are done in different counties, the general rule is that the offense is committed in that county in which it is consummated,33 although in such a case statutes often permit the venue to be laid in either county.34

[263] 4. Abandonment and Nonsupport. In a prosecution for abandonment or nonsupport of wife or children, the general rule is that the venue is in the county in which they were when abandoned or when they became and were dependent, even though, during the whole of such time, defendant may have been in another county.35 There is authority for the prosecution of defendant in the county in which he resides.36

Oh.-State v. Dangler, 74 Oh. St.
49, 77 NE 271; State v. Knight, 54 Oh.
St. 330, 43 NË 281.
Pa.-Com. v. Mentzinger, 14 Pa.
Dist. 531.

Wash.-State V. Schomber, 23
Wash. 573, 63 P 221.

And see other cases infra § 263
et seq.

By statute in some jurisdictions, however, the 32. Venue in case of criminal, SE 869. (2) The offense of abandonprosecution for libel see Libel. ing one's child and leaving it in a de33. U. S. In re Kelly, 46 Fed. pendent condition is consummated, 653. and in the legal sense committed, in Ala.-Crow v. State, 18 Ala. 541. the county where the state of the Ill.-Brechwald v. Peo., 21 Ill. A. child's dependency upon others begins, on account of the withdrawal by the father of his presence' and aid in the way of support. Cleveland v. State, 7 Ga. A. 622, 67 SE 696. (3) "If the defendant in this case did not abandon his wife and children in Peoria county, he was improperly tried and convicted there. But it is to be observed that the personal presence of the offender is not always an indispensable element in fixing the local jurisdiction of a criminal offence. A crime is, in legal contemplation, committed in the place where the doer's act takes effect, whether he is himself in such place or not; in this way one may even perpetrate an offense against a State or county upon whose soil he never set foot. 1 Bishop's New Crim. Proc., 53; 1 Bishop's New Crim. Law, 110, 111." Johnson v. Peo., 66 Ill. A. 103, 107. (4) One who neglected to provide for his wife and children, in violation of the statute, was properly indicted in the county in which the duty to provide for them should be discharged; that is, in the county where they resided. State V. Dvoracek, 140 Iowa 266, 118 NW 399.

[a] Offenses cognizable by justices
of the peace.-(1) Under Rev. St.
(1899) 2748, as amended by L.
(1907) p 245, providing that all prose-
cutions before justices of the peace
for misdemeanor shall be commenced
and prosecuted in the township
wherein the offense is alleged to
have been committed, a prosecution
for a misdemeanor must be insti-
tuted before some justice of the peace
in the township wherein the offense
was committed. State v. Alford, 142
Mo. A. 412, 127 SW 109; State v.
Sexton, 141 Mo. A. 694, 125 SW 519.
(2) In Washington accused charged
with an offense cognizable by a jus-
tice of the peace may be tried in the
precinct where the offense is
mitted, although it is other than that
in which he resides. State v. Schom-
ber, 23 Wash. 573, 63 P 221.

com

34. Offenses committed in two or more counties see infra § 294.

35. Ga.-Bennefield V. State, 80 Ga. 107, 4 SE 869; Boyd v. State, 18 Ga. A. 623, 89 SE 1091; Ware v. State, 7 Ga. A. 797, 68 SE 443; Cleveland v. State, 7 Ga. A. 622, 67 SE 696.

Ill-Johnson v. Peo., 66 Ill. A. 103. Ind.-State v. Yocum, 182 Ind. 478, 106 NE 705.

Iowa.-State v. Dvoracek, 140 Iowa 266, 118 NW 399.

Mich. In re Price, 168 Mich. 527, 530, 134 NW 721, AnnCas1913C 594 [quot Cyc].

72

Minn.-State v. Justus, 85 Minn.
114. 88 NW 415.
Nebr.-Cuthbertson V. State,
Nebr. 727, 101 NW 1031.
Nev. In re Roberson, 38 Nev. 326,
149 P 182. LRA1915E 691.

N. Y.-Peo. v. Quigley, 75 Misc.
151, 134 NYS 953: Peo. v. Meyer, 12
Misc. 613, 33 NYS 1123.

R. I-State v. Peabody, 25 R. I. 544, 56 A 1028.

Wis.-Adams V. State, 164 Wis. 223, 159 NW 726.

[a] Rule applied.-(1) If a hus31. In re Mote, 98 Kan. 804, 160 band, by his agent, sends his wife P 223; State v. Kindig, 55 Kan. 113, and infant child to a county other 39 P 1028; State v. Potter, 16 Kan. than that in which he and his wife 80; Kennison v. State, 83 Nebr. 391, separated, and the child there be119 NW 768; State v. Crinklaw, 40 comes dependent and destitute. the Nebr. 759, 59 NW 370; State v. father is indictable in the latter counBrowning, 70 S. C. 466, 50 SE 185. ty. Bennefield v. State, 80 Ga. 107, 4

[b] "It is quite immaterial where the first act of separation occurs, if such act is followed by a wilful refusal to support at the place previously provided by the husband and considered by them as their home. The county in which the home is fixes the venue of the offense." Barnes, J., in Cuthbertson v. State, 72 Nebr. 727, 732, 101 NW 1031 [quot In re Roberson, 38 Nev. 326, 333, 149 P 182, LRA1915E 691].

Per

[c] In Pennsylvania jurisdiction is not determined: (1) By the place where the original desertion OCcurred. Barnes v. Com., 2 Pennyp. 506; Com. v. Tragle, 4 Pa. Super. 159. (2) By the residence of defendant. Keller v. Com., 71 Pa. 413; DeMott v. Com., 64 Pa. 302; Com. v. Tragle, 4 Pa. Super. 159; Com. v. Wall, 4 Pa. Dist. 326. Compare Com. v. Douglass. 2 LancLRev 179, 14 PittsbLeg JNS 368.

[d] In Tennessee the offense of willfully leaving the state after abandoning a child under the age of sixteen years is punishable in a county bordering on an adjoining state, where the abandonment took place in that county and defendant went directly from such county into such adjoining state. State v. Adams, 137 Tenn. 521, 194 SW 579.

36. Poindexter v. State, 137 Tenn. 386, 193 SW 126.

[a] In Louisiana the offense of deserting and neglecting to provide for

venue of the crime is in the county where the wife and children are when the complaint is made or the indictment returned.37

A prosecution for nonsupport by a parent must be instituted in the county in which defendant resides at the time he neglects or refuses to furnish the support.3

[264] 5. Abduction and Inveigling.39 The offense of abduction for the purpose of prostitution or concubinage is in the county where the girl was forced or induced to go away.1 40 Where accused in one jurisdiction, by letters addressed to a girl at her home in another jurisdiction, induces her to come to him, the taking occurs at the girl's home, and accused is not subject to prosecution in the jurisdiction to which the girl came in response to his letters.41

Inveigling a person by false representations with intent to induce him to leave the state must be prosecuted and tried in the county where the inveiglement took place.42

[265] 6. Abortion. A prosecution for abortion must be brought in the county where the medicine is given, or where the other acts producing the abortion are performed, although the result of such acts occurs in another county," 43 unless, as in some jurisdictions, a statute allows prosecution in either.44

[266] 7. Attempts and Solicitation. As a

the support of a minor child is committed, not at the place to which a deserted wife, having the child in custody, may be compelled to go, in order to find the support which the husband and father fails to provide, but at the place where the latter is to be found, when, and as long as, his desertion and neglect occur and continue, and the lawful removal of the wife and child from one place to another does not operate to change the venue. State v. Fick, 140 La. 1063, 74 S 554; In re Baurens, 117 La. 136, 41 S 442.

37. Ex p. Lewis, 34 Nev. 28, 115 P 729; State v. Sanner, 81 Oh. St. 393, 90 NE 1007, 26 LRANS 1093.

rule an attempt to commit a crime is indictable in the county, or in any county, in which an overt act or acts constituting the attempt are done with intent to commit the crime.45 The offense of solicitation to commit a crime is committed where the solicitation is communicated;1 and a solicitation to commit a crime, when communicated by letter, is indictable in the county where the letter was received, although it was sent from another county.17

[267] 8. Bigamy. In the absence of a statute, bigamy is indictable only in the county where the bigamous marriage took place, as the offense is there committed.48 In some states, however, statutes authorize indictment for bigamy either in the county where the bigamous marriage was entered into or in any county where defendant is apprehended, or where he resides,50 or where the parties afterward cohabit;51 but a statute authorizing indictment in any county in which accused is apprehended is unconstitutional where the constitution requires the trial of an offense to be in the county of its commission.52

49

[268] 9. Bribery. The offense of bribery or an attempt to bribe is committed and indictable in the county where the offer is made, or made and accepted, as the case may be.53 A prosecution against a county officer for soliciting a bribe outside his county must be in the county where the bribe was solicited, and not where he holds of

would not have jurisdiction, although
the intercourse occurred there; but
that such court would have jurisdic-
tion if defendant's purpose was not
communicated to the girl until they
had come into N county, because un-
der such circumstances the taking
was a continuous act). Compare
State v. Round, 82 Mo. 679 (holding
that, where the female was taken
from the home of relatives in an-
other state and brought to the coun-
ty where her father lived and the
purpose of the taking was there ac-
complished, accused was held triable
in such county).

195.

544.

137.

Tenn.-Finney v. State, 3 Head Tex.-Brown v. State, (Cr.) 27 SW 41. Reg. v. Blythe, 4 B. C. 276. 42. In re Kelly, 46 Fed. 653. Eng.-1 Hale P. C. p 693. [a] In Texas (1) defendant may be [a] Enticing or inveigling slave.— [a] Reason of rule.-"It is the viprosecuted for the desertion of his But where a person residing in one cious contract-the violation of morwife and child either in the county county, with intent to convert aals and policy-the law denounces where the abandonment occurred or slave to his own use, enticed or in-and punishes. It results, that the in the county in which the aban-veigled him from the services of his offense is committed only at the doned wife or child shall have replace of the second marriage; and sided for the six months next precedthere alone-in the very county-is ing the filing of the complaint, inforthe offense indictable and punishmation, or indictment. Hatch V. able." Beggs v. State, 55 Ala. 108, State, 76 Tex. Cr. 423, 174 SW 1062. 110. (2) But in the case of a prosecution for the abandonment of a wife after seduction and marriage, the court 43. State v. Hollenbeck, 36 Iowa of the county where the abandon- 112; State v. Wheaton, 79 Kan. 521, ment occurred is the only court 99 P 1132; Com. v. Bingaman, 51 which has jurisdiction. Kirkendall Pa. Super. 336; Moore v. State, 37 v. State, (Cr.) 180 SW 676.

38. State v. Dangler, 74 Oh. St. 49, 77 NE 271.

was

owner in another county, and thereby
induced him to come into the county
of such person's residence, it
held that the offense was complete in
the latter county, and that he might
be there indicted. Crow v. State, 18
Ala. 541.

Tex. Cr. 552, 40 SW 287.

44. Hauk v. State, 148 Ind. 238, 46
NE 127, 47 NE 465.
Offense committed partly in two
counties see infra § 294.

45. Polliser v. U. S., 136 U. S. 257,
10 SCt 1034, 34 L. ed. 514; U. S.
Worrall, 28 F. Cas. No. 16,766, 2 Dall.
384, 1 L. ed. 426; Peo. v. Grubb, 24
Cal. A. 604, 141 P 1051; Griffin v.
State, 26 Ga. 493; Graham v. Peo., 181
Ill. 477, 55 NE 179, 47 LRA 731;
State v. Terry, 109 Mo. 601, 19 SW
206. See also supra § 203.

39. Kidnapping see infra § 278. 40. Peo. v. Lewis, 141 Cal. 543, 75 P 189; State v. Johnson, 115 Mo. 480, 22 SW 463; Studer v. State, 29 Oh. Cir. Ct. 33 [aff 74 Oh. St. 519, 78 NE 1139] (holding that, under Rev. St. § 7023, the gravamen of the offense is the decoying, the procuring, and the inducing, and where this was done in one county, while the house of ill fame entered was in another, the venue of the prosecution was properly laid in the county where the decoying, etc., was done); Com. v. Kaniper, 3 Pa. Co. 276, (holding that, where defendant took the girl from her home in B county for the purpose, to which she then consented, of taking her to N county and there having sexual intercourse Ark. Walls v. State, 32 Ark. 565; with her, the court of N county Scroggins v. State, 32 Ark. 205.

F.

1.

46.
47.

Griffin v. State, 26 Ga. 493.
Griffin v. State, 26 Ga. 493.
U. S.-U. S. v. Jernegan, 26
Cas. No. 15,477, 4 Cranch C. C.

48.

Ala.-Brewer v. State, 59 Ala. 101; Beggs v. State, 55 Ala. 108; Williams v. State, 44 Ala. 24.

49. State v. Damon, 97 Me. 323, 54 A 845; State v. Sweetsir, 53 Me. 438; State v. Griswold, 53 Mo. 181; King v. Peo., 5 Hun (N. Y.) 297: Collins v. Peo., 1 Hun (N. Y.) 610, 4 Thomps. & C. 77; Houser v. Peo. 46 Barb. (N. Y.) 33; Peo. v. Mosher, 2 Park. Cr. (N. Y.) 195; Reg. v. Whiley, 1 C. & K. 150, 47 ECL 150; Rex. v. Fraser, 1 Moody C. C. 407; Rex. v. Gordon, R. & R. 36; 2 Cro Jac. 1 c 11.

[a] The venue cannot be laid under such a statute in a county where the unlawful marriage did not take place and where accused was not apprehended. Collins v. Peo., 1 Hun (N. Y.) 610, 4 Thomps. & C. 77.

50. State v. Damon, 97 Me. 323, 54 A 845.

51. Peo. v. Price, 250 Ill. 109. 95 NE 68; State v. Hughes, 58 Iowa 165. 11 NW 706.

52. Walls v. State, 32 Ark. 565; State v. Smiley, 98 Mo. 605, 12 SW 247. See also Peo. v. Price, 250 Ill. 109, 95 NE 68.

53. U. S. v. Worrall, 28 F. Cas. No. 16,766, 2 Dall. 384; State v. Knight, 54 Oh. St. 330, 43 NE 281.

fice.54

[269] 10. Burglary. The offense of burglary is committed in the county where the party breaks and enters,55 and, where the constitution guarantees to accused a trial in the county where the offense was committed, the legislature cannot authorize prosecution for burglary in a county in which it was not committed, but into which accused may have carried property stolen at the time of the burglary.56

[270] 11. Conspiracy. Questions as to the venue of a prosecution for conspiracy are elsewhere treated.57

[§ 271] 12. Dealing in Margins. The venue of the statutory offense of dealing in margins is in the county where the orders are given and the money is paid.58

64

63

entire transaction constituting the embezzlement occurred in one county only, the venue must as a matter of course be laid in that county. The crime of embezzlement is committed in the county in which the money or the property is converted, although it may have been received in another county, and it may, and as a rule should, be there indicted and tried.62 But it is held that an indictment will lie in the county where accused, being in possession of the property or the money, formed the intent to convert it, although he may have received it and actually disposed of or appropriated it in another county." According to some of the cases, if the transaction constituting the offense extended through more than one county the county in which the conversion took place has not the exclusive jurisdiction. The venue may be laid in the county in which the property was intrusted to defendant and in which he refused to return it, notwithstanding the fact that, while acting in his fiduciary capacity, he fraudulently removed such property to [a] Presumption.-Where it is poses of the same without the conshown that an employee received sent of the owner or the bailor, and money from his employer in the to his injury, and without paying to county in which he is indicted, and such owner or bailor, on demand, the there is no evidence that he carried full market value or the market the same out of the county, such price thereof. In the first kind the evidence, and his unexplained failure crime is complete as to pay the money over or to account party fraudulently converts the arfor it, are prima facie proof that he ticles to his own use. McCoy V. converted it in such county. State State, 15 Ga. 205; Raiden v. State, v. New, 22 Minn. 76. To same effect 1 Ga. A. 532, 57 SE 989. In the secWallis v. State, 54 Ark. 611, 16 SW ond kind the crime is complete, the 821. other elements being present, when demand is made and the full market value or price is not thereupon paid. Venue for the criminal prosecution lies only in the county where the crime becomes complete in one of the methods above stated. Raiden V. State, supra.

[272] 13. Embezzlement.59 Defendant cannot be prosecuted for embezzlement in a county where the crime was not actually, or in contemplation of law, perpetrated. Therefore, where the

60

54. State v. Knight, 54 Oh. St. 330, 43 NE 281.

55. State v. McGraw, 87 Mo. 161; State v. Carroll, 55 Wash. 588, 590, 104 P 814, 133 AmSR 1047, 19 Ann Cas 1234 [quot Cyc].

56. Martin v. State, 176 Ind. 317, 95 NE 1001; State v. McGraw, 87 Mo. 161; State v. Carroll, 55 Wash. 588, 590, 104 P 814, 133 AmSR 1047, 19 AnnCas 1234 [quot Cyc].

57. See Conspiracy § 235. 58.

Weare Commn. Co. v. Peo., 111 I. A. 116 [aff 209 Ill 528, 70 NE 1076].

59. See also supra § 206. 60. Hill v. Taylor, 50 Mich. 549, 15 NW 899 (where the court says that the constitutional guaranty on this subject is too plain to be controverted, and that Comp. L. §. 7605, which authorizes the prosecution of embezzlement by various public agents or by private agents under written instructions or agreements as to the disposal of property, in the county where the complainant's principal place of business may be, cannot override such guaranty); State v. Mispagel, 207 Mo. 557, 106 SW 513. And see other cases infra this section.

61. State v. Bailey, 50 Oh. St. 636. 36 NE 233.

62. Ala.-Knight v. State, 152 Ala. 56, 44 S 585.

[b] Embezzlement by public officer. (1) In the absence of affirmative proof to the contrary the embezzlement of public money by a tax collector will be presumed to have been committed in the county of which he is an officer. Robson v. State, 83 Ga. 166, 9 SE 610. (2) In a prosecution under Comp. L. § 5771, denouncing embezzlement by a state officer of moneys in the treasury, money is properly regarded as in the treasury whenever and wherever it is in the official custody, or under the official control and direction of the state treasurer for the use of the state, and the venue may be laid in the county in which the capital of the state is located notwithstanding the fact that defendant was not personally present where the money happened to be at the time he abstracted it or converted it to his own use. Peo. v. McKinney, 10 Mich. 54. [c] Embezzlement by officer of private corporation.-Where the treasurer of a corporation took notes executed by the corporation and discounted them and deposited the proceeds in banks in a different county, the venue of the offense of embezzlement is properly laid in the county where the corporation was located. Mangham v. State, 11 Ga. A. 427, 437, 75 SE 512 (where it was said: "It would be absurd to hold that if a president of a bank located in the city of Atlanta, in the county of Fulton, should go to New York City, where his bank keeps an account, and draw from that bank the funds of the bank of which he is the official head, and in New York City deposit the funds thus drawn to his individ[citual credit, the embezzlement of the St.

Ark.-Wallis v. State, 54 Ark. 611, 16 SW 821.

Cal.-Ex p. Palmer. 86 Cal. 631, 25 P 130; Peo. v. Murphy, 51 Cal. 376; Peo. v. Meseros, 16 Cal. A. 277, 116 P 679.

Fla.-Hopkins v. State, 52 Fla. 39, 42 S 52.

Ga-Robson v. State, 83 Ga. 166,

9 SE 610.

Ill-Spalding v. Peo., 172 Ill. 40,

49 NE 993.
Iowa.-State v. Hengen, 106 Iowa
711. 77 NW 453.

Kan-State v. Small, 26 Kan. 209.
Mich-Hill v. Taylor, 50 Mich. 549,
15 NW 899.
Minn.-State v. New, 22 Minn. 76.
Mo.-State v. Mispagel, 207 Mo.
557, 106 SW 513.

N. M.-Terr. v. Hale, 13 N. M. 191, 81 P 583, 13 AnnCas 551 Cycl.

70.

181,

Oh.-Campbell v. State, 35 Oh. Tex-Steadham v. State, 40 Tex. Cr. 43, 48 SW 177; Yost v. State, (Cr.) 38 SW 192; Brown v. State, 23 Tex. A. 214, 4 SW 588; Cohen V. State, 20 Tex. A. 224; Cole v. State, 16 Tex. A. 461.

Wis-Dix v. State, 89 Wis. 250, 61 NW 760.

Eng. Reg. v. Treadgold, 14 Cox C. C. 220.

Que. Reg. v. Hogle, 5 Que. Q. B. 59,

money of the bank would take place
in the city of New York. To so hold
would put it in the power of an offi-
cial of a bank or other corporation
either to avoid altogether criminal
responsibility for his offense, or to
make very difficult the prosecution
and proof of such offense").

[d] In Georgia Pen. Code § 191,
makes two kinds of acts criminal:
First, that in which the party fraud-
ulently converts to his own use the
money or article intrusted; and sec-
ond, that in which he otherwise dis-

soon as the

[e] In Mississippi Code (1906) § 1402, provides that, when an embezzlement is committed, it may be prosecuted either in the county in which the money or the property, or some part thereof, was received or converted, or in the county in which the party charged was under obligation to pay over the funds or the property embezzled. State v. Hughes, 96 Miss. 581, 51 S 464.

63. D. C.-Woodward v. U. S., 38 App. 323.

28

Kan.-State v. Small, 26 Kan. 209. La-State v. Sullivan, 49 La. Ann, 197. 21 S 688, 62 AmSR 644. Minn.-State V. Baumhager, Minn. 226. 9 NW 704. Nebr.-Higbee v. State, 74 Nebr. 331. 104 NW 748.

Tex.-Brown v. State, 23 Tex. A. 214. 4 SW 588.

Eng. Reg. v. Rogers, 3 Q. B. D. 28; Rex v. Tavlor, 3 B. & P. 596, 127 Reprint 322: Reg. v. Murdock. 5 Cox C. C. 360; Rex. v. Hobson, R. & R. 41.

[a] Reason for rule This is clear, when it is remembered that "the first possession being lawful, the act of embezzlement consists, in a certain sense, in a mere act of the mind, without any outward and visible trespass, as in the case of ordinary larceny," and that the fact that this mental act of fraudulent appropriation has taken place has to be inferred from the conduct of defendant. State v. Baumhager, 28 Minn. 226, 9 NW 704.

[b] Embezzlement of right of action.-In a prosecution under Cr. Code § 121, for embezzlement of a right of action, the converting of such right to one's own use is an essential element, so that the venue is properly laid in the county where the purpose to convert is formed. Higbee v. State, 74 Nebr. 331, 104 NW 748.

64. Kan.-State v. Small, 26 Kan. 209.