State v. Ayers
67 Tenn. 96
Tenn.
1874
Check Treatment
Sneed, J.,

delivered the opinion of the court.

The prisoner was arraigned for (rial before the Criminal Court of Knox county upon an indictment as accessory before the fact to the crime of murder in the first degree. The indictment charges that John Webb and David Duncan, on the 5th day of March, 1874, in the county (of Knox) aforesaid, did unlawfully, feloniously, wilfully, maliciously, deliberately, pre-meditatedly, and of their malice aforethought, kill and murder one Richard F. Reynolds in the peace of the State, then and there being by shooting him, the said Richard F. Reynolds, with a pistol, of which shooting as aforesaid the said Richard E. Reynolds did shortly thereafter, in the county aforesaid, die. And the jurors aforesaid, upon their oath aforesaid, do further present that Joseph Ayers and Columbus Ayers, before the said felony and murder was committed as aforesaid, on to-wit, the day and year aforesaid, in the county of Anderson, State of Tennessee, did unlawfully, maliciously, and feloniously move, incite, counsel, hire, command, and procure the said John Webb and David Duncan, the said felony and murder in manner and form aforesaid to do and commit, against the peace and dignity of the State.

The indictment was demurred to upon the ground that it affirmatively appears upon the face of the in*98dictment that the Criminal Court of Knox county had no jurisdiction of the prisoners’ alleged offense. The •court sustained the demurrer and quashed the indictment, from which judgment Attorney-General Williams, on behalf of the State, has appealed in- error. J The sole question presented is, whether the prisoner, who in one county of this State, counseled, hired, procured or commanded a murder to be committed in another county of this State, is indictable in the county where the murder was actually consummated, or in the county in which such counseling, hireing, commanding or procuring was done, as accessory before the fact to such murder. The indictment was framed under the provisions of the Code, sec. 4975, in the words following: ‘‘When an offense is committed partly in one county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” It is insisted on behalf of the prisoner that the statute is repugnant to that provision of the Constitution which guarantees to the accused “a speedy public trial by^ an impartial jury of the county in which the crime shall have been committed.” Constitution, Art. 1, sec. 9. And this depends upon the inquiry, where was the crime of accessory before the fact committed in this case? The criminal jurisprudence of this State, though often the subject of reproach for the facile impunity of great offenders upon mere technical points, cannot certainly be impugned for any disregard of the rights of accused persons under the fundamental law. There is *99no instance in our books where the organic law has been strained or distorted to bring bad men to a just judgment or give impunity to their crimes. If the offense of which the prisoner is charged was complete and consummate in the county of Anderson, then the county of Anderson alone has jurisdiction thereof.

In the case of Armstrong v. The State, 1 Col., 338, this court held that the statute allowing offenses committed on the boundary of two or more counties, or within a quarter of a mile thereof, to be indicted in either county, was unconstitutional and void as an infringement of the provision now under consideration. But that was a case of violent assault and battery, where the offense was consummate, either in Franklin or Coffee county, but within the prescribed distance of the latter where the prosecution was instituted. The crime of accessory before the fact is a peculiar one. The absence of the accessory at the time and place of the principal offense is an essential element of the crime. Thus Sir Matthew Hale defines the accessory before the fact to be “one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory.” The crime of the accessory before the fact is not in merely counseling, hiring, or commanding the crime to be committed, for if the crime be not at last committed, there is no such offense; but the connivance and the result aimed at must concur, and the latter must be the effect of the former in order to complete the crime. Thus, says Sir William *100Blackstone, in discussing the doctrine of accessories after the fact, “if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make him accessory to the homicide; for until death ensues there is no felony.” 2 Cool., B. C., 320. And the reason applies with like force to the offense of an accessory before the fact. The offense is compounded of the connivance of the accessory and the actual killing by the principal' felon, and the crime of the accessory, though inchoate in the act of counseling, hiring, or commanding, is not consummate until the deed is actually done. The law, in such case, holds the accessory before the fact to be guilty of the murder itself, not as principal, it is true, but as accessory before the fact, for it is the doing of the deed, and not the counseling, hiring, or commanding that makes his crime complete; and it is for the murder that he is indicted, and not for the counseling and procuring. We hold, therefore, that the ¿ocus in quo of the offense of an accessory before the fact to the crime of murder, is the county in which the murder is done, and that the jurisdiction is there. The act of 1847, ch. 73, sec. 1, brought into the Code sec. 4591, prescribes that an accessory before the fact may be prosecuted and convicted for a substantive felony, whether the principal felon has or has not been previously convicted, the offense being cognizable in any court having jurisdiction of the crime of the principal felon. This law has been in force in this State for many years, and must be taken as a legis*101lative solution of the problem under consideration. Under it the prisoner would have absolute impunity for the alleged crime unless arraigned and tried in the words of the statute “in the court having jurisdiction of the crime of the principal felon.” The crime of the accessory before the fact being only complete when the murder is done, the jurisdiction for his trial is where the murder is done. This is “the county in which the crime was committed,” in the sense of the Constitution.

Reverse the judgment and remand the case for trial.