State v. . CutshallState v. . Cutshall
The statute of North Carolina (
Shepherd, J., concurring, and Merrimon, C. J., dissenting.
The defendant was arraigned at August Term, 1891, of the Criminal Court of Mecklenburg County, before Meares, J., upon the following indictment:
“The jurors for the State, upon their oaths, do present, that W. T. Cutshall, late of Mecklenburg County, on the 1st day of January, A. D. 1880, did marry a woman whose name is to the jurors unknown, and the said person last mentioned the said W. T. Cutshall then and there had for a wife, and that the said W. T. Cutshall afterwards, to-wit, on the 1st day of March, A. D. 1890, with force and arms, in York County, South Carolina, feloniously and unlawfully did marry and take to wife one Susan Ella Pickard, of the County of Mecklenburg, in the State of North Carolina, and to the said Susan Ella Pickard then and there was married, the said unknown woman, his former wife, being then alive, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
“And the jurors aforesaid, upon their oaths aforesaid, do further present that said W. T. Cutshall, late of Mecklenburg County, on the 1st day of January, 1880, did marry one -----, a woman whose name is to the jurors unknown, and the said
“And the jurors aforesaid, upon their oaths aforesaid, do further present that W. T. Cutshall, late of Mecklenburg County, on the 1st day of January, A. D. 1880, did marry one -----, a woman whose name is to the jurors unknown, and the said person last mentioned the said W. T. Cutshall then and there had for a wife, and that the said W. T. Cutshall afterwards, to-wit, on the 1st day of March, A. D. 1890, being then and there a resident of the County of Mecklenburg and State of North Carolina, with force and arms feloniously and unlawfully did procure and induce one Susan Ella Pickard to accompany him to York County, in the State of South Carolina, with intent then and there unlawfully and feloniously to marry the said Susan Ella Pickard, the said unknown woman, his former wife, being then alive, and with intent thereafter to return tо the County of Mecklenburg, and State of North Carolina, and to live with the said Susan Ella Pickard as his wife, and intending thereby to commit a fraud upon the laws of North Carolina against the crime of bigamy, and that the said W. T. Cutshall, on the said 1st day of March, A. D. 1890, with force and arms feloniously, and in pursuance of the said fraudulent intent, did
A nolle prosequi was entered as to the third count. Upon being called upon to plead, the defendant moved to quash the indictment, which motion was allowed, and the State appealed.
Avery, J.: The statute (
The general rule is that the laws of a country “do not take effect beyond its territorial limits, because it has neither the
In the case of State v. Ross, 76 N. C., 242, the Court said: “Our laws have no extra-territorial operation, and do not attempt to prohibit the marriage in South Carolina of blacks and whites domiciled in that Stаte,” thus recognizing the principle, generally accepted in America, that a State will take cognizance, as a rule, only of offences committed within its boundaries. Among the exceptions to this general rule are the cases where one, being at the time in another State or country, does a criminal act which takes effect in our own State, as where one who is abroad obtains goods by false pretences or circulates libels in our own State, and contrary to our laws or from a standpoint beyond the line of our State fires a gun or sets in motion any force that inflicts an injury within the State, for which a criminal indictment will lie. 1 Bishop Cr. Law, § 110; Horn v. State, 4 Texas, 659; Cambose v. Mappell, 2 Wash. (C. C. R.), 98.
Persons guilty of such acts are liable to indictment and punishment when they venturе voluntarily within the territorial bounds of the offended sovereignty, or when, under the provisions of extradition laws or the terms of treaties, they are allowed to be brought into its limits to answer such charges.
As a rule, the validity of marriages contracted in any foreign country must be determined by the Courts of another nation with reference “to the law of the country, wherein they exchange the mutual consent to be husband and wife, which consent alone is by the law of nature a perfect marriage.” 1 Bish. on M. and D., §§ 855 and 856; State v. Ross, supra. Such marriages may be declared unlawful, not simply because they are contrary to the law of the State in
Wheaton (in his treatise on International Law, § 127, note 77) says, “In Great Britain, France and the United States, the general principle is to regard crimes as of territorial jurisdiction. * * * The question whether a State shall punish a foreigner for a crime previously committed abroad against that State or its subjects, also depends upon its system respecting punishing generally for crimеs committed abroad, Great Britain and the United States respecting strictly the principle of the territoriality of crime.”
While, in our external relations with other nations, our federal head, the United States, is the only sovereign, for the purpose of internal government, such portion of the sovereign power as has not been surrendered to the general government is retained by the States. 11 Am. & Eng. Enc., p. 440, and notes.
In the exercise of their reserved powers, especially in the execution of the criminal law, questions arise which are settled and determined either according to the principles of international law or by analogy to them. It is contended that nothing but comity between nations, in the absence of express provisions оf treaties, prevents one nationality from making laws to punish persons who commit criminal offences in another country and afterwards come within its territory, and that admitting this principle to be correct, there can be no treaty stipulation, and there is in fact no constitutional inhibition, that restricts the Legislature of one of our inter-
Article 29 of the confirmatory charter granted by Henry III, provided that “No freeman should be taken or imprisoned or disseized of freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed, nor will we pass upon him or condemn him but by lawful judgment of his peers, or by the law of the land.”
In the formal Declaration of Independence, the King of Great Britain, after being charged with many violations of fundamental principles and invasions of common rights, was arraigned before the world “For depriving us in many cases of trial by jury; for transporting us beyond the seas to be tried for pretended offences.” This language evinces the purpose of our representatives to risk their lives and their fortunes, in part at least, to secure not simply the ancient right of trial by jury, but trial by a jury of the vicinage within easy reach of all evidence material for the vindication of the accused, where the charge might prove unfounded upon а fair investigation.
During the same year these principles were embodied in the Declaration of Rights by the Colonial Congress, in what now constitute sections 13 and 17 of Article I of the Constitution, which are as follows: ”
Not only has
Mr. Charles A. Dana published some years since an article in his paper, the New York Sun, which it was claimed was libelous in its strictures upon the conduct of a public official at Washington City, and Judge Blatchford, upon his being arrested in New York City by virtue of a warrant of a United States Commissioner and brought to Washington, heard the facts, after granting a writ of habeas corpus, and discharged the prisoner. Matter of Dana, 7 Ben. (D. C.), 1. Commenting upon this case, Judge Coolеy said: “It would have been a singular result of a revolution, where one of the grievances complained of was the assertion of a right to send parties abroad for trial, if it should have been found that an editor might be seized anywhere in the Union and transported by a Federal officer to every territory in which his paper
Every State has embodied in its organic law the guarantee that no person shall be taken or imprisoned, etc., “but by the law of the land,” and this term Judge Cooley treats as synonymous with “due process of law.” Const. Lim., marg., p. 353. “Due process of law not only requires that a party shall be properly brought into Court, but that he shall have the opportunity when in Court to establish any fact which, according to the usаges of the common law or the provisions of the Constitution, would be a protection to him or his property.” Cooley‘s Const. Lim. (4th Ed.), 460, (marg., p. 369); Taylor v. Miles, 5 Kansas, 498.
In Hoke v. Henderson, 4 Dev., 16, Chief Justice Ruffin said: “The clause itself (
These amendments apply only to Federal tribunals; but the fact that they were prohibited from trying, except in the State where the crime should be committed, is evidence of a purpose to put it beyond the power of Congress to have a citizen tried for a criminal offence except by a jury of the vicinage, and at a point not so remote as to deprive him of the benefit of his witnesses.
Another amendment (
The State of South Carolina was the sovereign whose authority was disregarded when the bigamous marriage was celebrated. If the defendant married a second time in South Carolina, or elsewhere outside of North Carolina, the act had no tendency at the time to affect society here, nor can that unlawful conduct be punished as a violation of our criminal laws. On the other hand, the completed act of entering
It is needless now to discuss the question, whether on account of the fact that the ultimate effect of the wound is the resulting death, the State in which the death occurs in such cases should not be held to have common law jurisdiction to try the murder, since nearly all of the States have enacted statutes providing for suсh trials, and some of them have declared such enactments essential. Commonwealth v. McLorn, 101 Mass., 101; Bishop‘s Cr. Law, sections 112 to 117. Our statute is a re-enactment of that passed in England, in the assertion of the almost omnipotent power of the Parliament, yet, as we have seen by reference to Wharton‘s statement of the rule adopted in England as to jurisdiction of crimes, the Courts of that country would never have held “elsewhere” to refer to bigamy committed by citizens of other nationalities, but to second marriages contracted by her own subjects, while a former wife or husband was living. Parliament is not, of course, prohibited by any constitutional provision from passing an act which makes a particular offence, contrary to the generаl rule, indictable and punishable, not only in a country of England other than that in which it is committed, but when committed in a different dominion of the empire of a foreign land. Walls v. State, 32 Ark., 568; 2 Wharton‘s Cr. Law, section 1685. The powers of Congress on this subject are well defined in the Constitution, and the powers of the States are limited by the clause we have cited and others, as well as by the nature of our government, containing, as we look upon it, internally, as many sovereignties as there are States. Our statute was not amended so as to incorporate the English idea until The Code was enacted in 1883; but it seems that in most of those States where atten-
The attempt to evade the organic law by making the coming into this State (after committing an offence in another) a crime is too palpable, in view of the admitted fact that the Constitution of the United States gives to citizens of all the States the immunitiеs and privileges of its own citizens, and of their guaranteed right under the Interstate Commerce clause, to pass through another State without arrest and inquiry into their accountability for offences against their own sovereignty, but especially because the trial for the new
No Court has ever questioned the power of a State to pass quarantine laws and statutes regulating the entrance of paupers within its limits, but this does not include the authority to impose a tax per capita, even on immigrants from a foreign nation arriving at its ports, or on passengers in transitu from one State to another. Norris v. Boston, and Smith v. Turner, 6 Myers’ Fed. Digest, 665, 675, 677, 678 and 684. Mr. Justice Wayne, in the case last cited, said: “Some reliance in the argumеnt was put upon the cases of Holmes v. Jennison, 14 Peters, 546; Groves v. Slaughter, 15 Peters, 449, and Priggs v. Commonwealth, 16 Peters, 539, to maintain the discretion of a State to say who shall come to and live in it. Why either case should have been cited for such a purpose, I was at a loss to know, and have been more so from a subsequent examination of each of them. All that is decided in the case of Holmes v. Jennison, is that the States of the Union have no constitutional power to give up fugitives from justice to the authorities of a nation from which they have fled. That it is not an international obligation to do so, and that all authority to make treaties for such a purpose is in the United States.” The learned Justice, in a subsequent portion of the same opinion (p. 684), said: “I have never, in any instance, heard the case оf Miln cited for the purpose of showing that persons are not within the regulating power of Congress over commerce, without at once saying to the counsel that that point had not been decided in that case. * * * * Indeed, it would be most extraordinary if the case of Gibbons v. Ogden, 9 Wheaton, 1, could be considered as having been reversed by a single sentence in the opinion of New York v. Miln, 11 Peters, 102, upon a point, too, not in any way involved in the certificate of division of opinion by which that case was brought to this Court. The sentence is that ‘they (persons) are not the subjects of commerce, and, not being imported
It will not be insisted that the Courts of the State of Maine would have power to enforce a statute which provided for punishing with death any person who had committed murder in another State and then gone within its limits, by apprehending a Texan and requiring him to send to the banks of the Rio Grande for testimony to meet and refute that of a malignant neighbor who had followed him almost across the continent to wreak his vengeance. If a State has the power to punish one caught within its borders as a felon for a bigamous marriage committed within another State, what is to prevent the trial of a citizen found in a neighboring State for a homicide, if the statute were broad enough to include murder as well as bigamy—if the statute made it a felony punishable with death to come into the State after committing murder in another? The assertion of such authority would jeopardize the security of every American citizen who ventured beyond the confines of the State in which he resided. The express provision for the extradition
The additional counts, in which it is charged that the defendant, after the bigamous marriage in South Carolina came into North Carolina and cohabited with the person to whom he was married, cannot be sustained, because that offence is not covered by our statute. The North Carolina statute would, if enforced, subject him to indictment if he should come across the border and leave the woman behind.
While we do not recognize the validity of marriages of parties when they leave the State for the purpose of evading a law which makes a marriage between them unlawful, and with the intent, after celebrating the rites in another jurisdiction, to return and live in this State (State v. Kennedy, 76 N. C., 251), we have no express statute making such acts indictable as a felony, not as a misdemeanor, where they live in adultery here. State v. Cutshall, 109 N. C., 764. This fact is fatal to another count of the indictment. But we do not wish to be understood as questioning the power of the State to punish one of its citizens who goes out of the State with intent to evade its laws by celebrating a bigamous marriage beyond its jurisdiction and returning to live within its borders.
For the reasons given, we think that there was no error in the judgment of the Court below quashing the indictment, and it is
Shepherd, J.: I concur in the conclusion that the indictment was properly quashed.
The statute declares that “If any person, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in the Stаte of North Carolina or elsewhere, every such offender and every person counselling, aiding and abetting such offender, shall be guilty of felony, and imprisoned in the penitentiary or county jail for any term not less than four months nor more than ten years; and any such offence may be dealt with, tried, determined and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually committed in that county,” etc. (
It does not necessarily imply or intend that the offender shall be indictable and convicted in this State for the offence of bigamy in another State; such is not its meaning. It intends that whoever shall be in this State, being married to two living wives, or two living husbands, as the case may be (except in the cases excepted in the proviso to the statute), shall be guilty of felony, and that without regard to whether
It is said that in such case no offence is committed in this State or against it. This is a serious misapprehension. The statute, its purpose, makes the presence of the bigamist in this State an offence—makes him here a bigamist and guilty of a felony, whether he was so where the seсond marriage took place or not. Suppose the statute under consideration had declared in terms that if a bigamist shall come into this State, he shall be deemed and held to be guilty of bigamy and felony here, could its validity be seriously questioned? This is what the statute, in effect, declares.
The Legislature, in the exercise of the essential police powers of government, may, for the protection of the people, the safety and purity of society, exclude from its borders criminals of other States and countries. To that end, it may make their coming here, their presence in this State, a felony, if they were guilty of a specified offence committed by them in the State from which they came, or if they were chargeable with doing specified acts in the State from which they came, constituting no criminal offence there, but declared and deemed to be an offence here. It is their coming into this State, their presence here, and the fact that they did in the State from which they came the acts deemed and held
It has been suggested that the exercise of such power, except to a very limited extent, is not consistent with that provision of the Constitution of the United States which confers upon Congress the power “to regulate commerce with foreign nations and among the several States, and with the Indian tribes.” To what extent and exactly in what respects this provision restricts the exercise of the police power of the States, is not very definitely settled, but it is very clear that it does not inhibit the enactment of statutes like that under consideration. The right of the State to make and enforce such laws is fully recognized in City of New York v. Miln, 11 Peters, 102. In that case the Court said: “We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That by virtue of this, it is not only the right, but the bounden and solemn duty of a State to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all these powers which relate
That case is cited with approval in Holmes v. Jennison, 14 Peters, 540, Chief Justice Taney saying for the Court: “Again, the question under this habeas corpus is in no degree connected with the power of the States to remove from their territory any person whose presence they may think dangerous to their peace, or in any way injurious to their interest. The power in that respect was fully considered by this Court and decided in the case of New York v. Miln, 11 Peters, 102. Undoubtedly they may rеmove from among them any persons guilty of or charged with crime, and may arrest and imprison them in order to effect this object. This is a part of the ordinary police powers of the States, which is necessary to their very existence, and which they have never surrendered to the general government. They may, if they think proper, in order to deter offenders in other countries from coming among them, make crimes committed elsewhere punishable in their Courts, if the guilty party shall be found within their jurisdiction. In all of these cases the State acts with a view to its own safety, and is in no degree connected with the foreign government in which the crime was committed.” The first of the cases here cited is to some extent criticised in Henderson v. Mayor, 92 U. S. Rep., 259, and Chy Lung v. Freeman, Ibid., 275, but not in the аspect of it material here. It is difficult to see any substantial reason why the Legislature may not by proper enactment make it indictable—a misdemeanor or a felony—for persons who have done acts in one of the States deemed dangerous to its safety, or that of the morals or property or the prosperity of its people, if they be found within its limits. It may by such means keep out of and drive beyond its borders foreign paupers, common gamblers, bigamists, and the like. It must be the
This case is very different from State v. Knight, 1 Taylor‘s Reports, 44 (65). In that case the statute declared void, undertook to make the offence of counterfeiting in another State indictable in this State.
The indictment does not charge the defendant with bigamy committed in South Carolina; it charges him with a statutory crime (a felony) committed in this State, one of the essential acts constituting it having taken place in South Carolina. The statute does not make the second marriage the offence, it simply treats this as a fact to be taken in connection with others, all constituting the offence in this State. The offence is wholly statutory in its nature, and must be so treated.
I think the order quashing the indictment should be reversed, and the case disposed of accordingly.
Per curiam. Affirmed.