12 Wis. 537 | Wis. | 1860
By the Court,
The defendant was indicted in
The first is, in substance, whether, upon the facts stated in the indictment, the defendant could be lawfully indicted and tried in Grant county. There can be no doubt, and it was conceded on the argument, that the provisions of the statute, now found as sections 7 and 4, chap. 172, B. S., 1858, and which were then in force, were sufficient to authorize such indictment and trial, if those provisions are themselves valid. But the objection is based upon a clause of the constitution, to which, it is said, they are repugnant. That clause is in art. 1, sec. 7, and provides that the accused shall be entitled, “in prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed: which county or district shall have been previously ascertained by law.” It was claimed for the defendant that the offense was committed in the county where the mortal blow was given, and that therefore this provision of the constitution secures to him a right to be tried by a jury of that county, and makes it incompetent for the legislature to authorize him to be tried elsewhere.
I am unable to assent to this proposition, for two reasons, which, taken together, are to my mind entirely satisfactory. The first is, that the premises from which it is sought to be derived, are incorrect in point of fact. That is to say, the offense, if committed at all, was not committed in Clark county. And by that I mean it was not entirely committed there. The offense of manslaughter did not consist of the mere shooting and wounding of the deceased. On the contrary, the causing of his death was the most material element of the offense, and this did not take place there. The blow was struck in one county, and its effect was produced in another. Therefore the offense, which consists both of the giving of the mortal blow, and the production of its effect, cannot,
But something must be done. The general rule of the law that every offense was indictable only in the county where committed, was inapplicable to such a case. But it would not do to let the murderer escape entirely, merely because a general rule, not adapted to such a special case, could not be applied to it. It must be provided that the party could be tried in one county or the other. And in determining which, there was room for an argument in favor of either. The counsel for the defendant made an argument here of much force in favor of giving the preference to the county where the blow was struck. But the utmost effect to which I think it could be entitled, would be to show that in settling this question originally between the two counties, neither being within the general rule, ’ the preference ought
What then was the intention of this clause ? It seems to me . it must have been one of two things. The rule was either stated in this general form, upon the assumption that when it came to be applied to an exceptional case, where the offense was committed partly in two counties, it would be competent for the legislative power to provide that it might be prosecuted in one or in either of them, as being the only possible application which the rule could have: or, if it . intended to fix imperatively one of the counties in such a case, as the place of trial, the language employed can only be accounted for on the theory that it was assumed by the framers that for the purposes of punishment it had long been settled that the county where the death happened was to be deemed the one where the offense was committed. J am not prepared to say that it is not capable of the former construction. But if it is to be assumed that the clause fixes imperatively upon one or the other of the counties, then I think it must be held to be the one where the death happens. I am aware that a contrary decision was made in Riley vs. The State, 9 Humph., 646. But I am utterly unable to do what
On the whole, I am forced to the conclusion that there is nothing in the constitutional provision which invalidates the statute on this subject, and that the defendant was properly indicted and tried in Grant qounty.
The second question was, whether it was the duty of the circuit court of Grant county to transmit the case for trial to Clark county, on the application of the defendant, and whether, if it had done so, the circuit court of the latter would have had jurisdiction of it
The application of the defendant on which this question was predicated, was not made under the general statute allowing a change of venue for cause, but it was claimed under the same constitutional provision already considered, that he had an absolute right to be tried in Clark county. It seems therefore but a different presentation of the same question. Eor, assuming that the statute authorizing an indictment and trial in either county is valid, it then becomes a case where the two courts had concurrent jurisdiction, and the one first attaching became exclusive. Ho other court could acquire any jurisdiction of that case, except by a change of venue according to law, and that extends only to a change to some adjoining county. If the argument of the defendant upon the constitutional provision was correct, then he was improperly indicted in Grant county, and the court, instead of sending it to Clark county, should have dismissed it for want of jurisdiction. If incorrect, then the ground of
The third question is, “ whether the indictment was sufficient in law to warrant a conviction and judgment thereon.” No other question was made on the argument here, as to its sufficiency, except those already discussed. We suppose therefore tMs general question was intended to have reference to those points, as it should hardly be assumed that we are to examine the indictment critically to see if there are any possible objections not presented or relied on.
Understanding this as based upon the others, we therefore answer the first and third questions certified to us in the affirmative, and the second in the negative. Let this be certified accordingly to the circuit court, and an order entered that the defendant appear at the next term of the circuit court of Grant county to receive Ms sentence.