38 Kan. 737 | Kan. | 1888
The opinion of the court was delivered by
James M. Bunker, aged thirty-seven, seduced Cecilia Monroe, aged fifteen, in Sumner county, in this state, in 1883. At the time, they were engaged to be mar
Fred. H. Kurtz, before whom Bunker made the affidavit, was commissioned a notary for Ness county on April 9,1885. He resided in Lane county, and the affidavit was subscribed and sworn to in that county. At that time Lane county, being unorganized, was attached to the.county of Ness for judicial purposes. (Laws of 1881, ch. 99, § 5.) By the provisions
The trial of this case was commenced in Ness county, on November 7, 1887. At that time Lane county had been properly organized, the date of its organization being July 15, 1886, one year after the making of the affidavit. The jury returned a verdict of guilty against Bunker as charged in the information, and he was sentenced to be imprisoned in the penitentiary of the state at hard labor for the term of three years. Judgment was also rendered against him for the costs. From the judgment he appeals.
“ Where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the state; the trial in the new county.” (Wol. 1, §49.)
In Arkansas, it has been held that—
“ If a new county is formed of territory formerly included in an old county, an indictment for an offense antecedently committed within the territory embraced in the new county may be maintained in the new, under the usual allegation setting out the offense as committed in the new.” (McElroy v. The State, 13 Ark. 708.)
The same doctrine was declared in a New Jersey case, except that while it was held that the trial should be in the new county, it was also held that the indictment should not allege that the offense was committed in the new county, for the reason stated, that “it is seen that at the time mentioned there was no such place as that at which the offense is alleged to have been committed.” (The State v. Jones, 3 Halst. 307.)
In Georgia, also, it has been held that the offender should be tried in the new county, and that the offense might be, or should be, charged as having been perpetrated in the old county. (Jordan v. The State, 22 Ga. 545-555.)
It is claimed, however, that the filing of the affidavit in the district court of Ness county was “ an act constituting, or requisite to the consummation of the offense;” therefore that the jurisdiction of the offense would be in either Lane or Ness county, as having been committed partly in one and partly in
We think the offense was fully completed in the territory now embraced in Lane county, if peijury was committed by Bunker; and therefore the filing of the affidavit in Ness county did not confer upon the district court of that county jurisdiction of the accused.
The judgment of the district court will be reversed, and Bunker will be returned to the county jail of Lane county, by the warden of the penitentiary, for such further proceedings against him as may be proper.