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tween those whom it is their duty to serve impartially. leasehold premises, and it was given for the term of dud the courts are especially solicitous to discounte- fourteen years from the 1st of November, 1854. The nance all contracts or arrangements by these public lessee occupied the premises under the lease for that servants which savor of a purpose to stifle competion term, and since then for a succeeding terin of fouror repress rivalry in the departments of business in teen years, and deeming himself to be also entitled to which they ply their vocation. Illustrations are found a third term for a like period this action was brought in the cases of State v. Hartford & N. H. R. Co., 29 to secure the execution of a lease for the second term, Conn. 538; Hooker v. Vandewater, 4 Denio, 349; W.U. with the same covenants contained in the lease of the Tel. Co. v. Chicago & P. R. Co., 86 IU. 246; Coe v. Louis- first term. During its pendency McDonough de. ville & M. R. Co., 3 Fed. Rep. 775.

parted this life, and upon his decease the defendaut The vice of the discrimination here is that it is cal- Lewis Furey became entitled to the lot devised to oulated to coerce all those who have occasion to em- MoDonough for life, as well as another lot in which he ploy common carriers between New York and Cuba was previously vested with the title, and the third was from employing such agencies as may offer. Its ten- devised to Marie Therese Furey for her life. During dency is to deprive the public of their legitimate op- the action the name of the defendant Lewis Furey portunities to obtain carriage on the best terms was changed to Lewis J. Pooler, and Marie Therese they can. If it is tolerated, it will result practically in intermarried with Georg. Uppington. Neither of the giving the defendants a monopoly of the carrying trade defendants except Lewis Z. answered the complaint; between these places. Manifestly it is enforced by but he being an infant an answer was served in his the defendants in order to discourage all others from behalf by his guardian ad litem. This answer was in attempting to serve the public as carriers between the ordinary form, submitting his rights and interests these places. Such discrimination is not only un- to the protection of the court. A reference was therereasonable, but is odious. Ordinarily the remedy upon ordered to a referee in the first instance to exagainst a carrier is at law for damages for a refusal to amine and report the facts to the court, with his opincarry, or to recover the excess of charges paid to ob-ion thereon. This was afterward supplemented by a taip the delivery of goods. The special circumstances succeeding order, directing the referee to report all in this case indicate that such a remedy would not al- the evidence already taken and such as he might take ford complete and adequate redress, “as practical and pursuant to the second order, with his opinion. The efficient to the ends of justice" as the remedy in referee accordingly took the evidence offered by the equity. Watson v. Sutherland, 5 Wall. 74.

parties, and with his opinion reported it to court. ExThe motion for an injunction is granted.

ceptions were filed to his conclusions on behalf of the [See Johnson v. Pensacola, etc., R. Co., 16 Fla. 623; two defendants, Lewis J. and Marie Therese. These S. C., 26 Ain. Rep. 731 ; Ragan v. Aiken, 9 Lea, 609; S. exceptions were so far sustained tbat judgment was C., 42 Ám. Rep. 684; Ex parte Benson, 18 S. C. 38; S. ordered in their favor, and a further reference directed C., 44 Am. Rep. 564.-Ed.]

to ascertain the value of the use and occupation of the property since the 1st of November, 1882, and directing the plaintiff also to account for the rent unpaid at

that time. LANDLORD AND TENANT - COVENANT FOR

[Omitting a question of practice.) NEW LEASE LIKE OLD ONE,

* The court considered the evidence, as well as the

facts established by it, and concluded that the plainNEW YORK SUPREME COURT

tiff was not entitled to another lease of the property

with all the covenants contained in the first. And it MUHLENBRINCK V. POOLER. *

is this determination by which the rights of the parties In 1851 the owner of premises leased them for fourteen years

were disposed of at the hearing. Whether the plainfrom November 1, 1854. The lease provided that the

tiffs, as the executors of the lessee, were entitled to a lessee should erect upon the premises four brick dwell

lease containing all the same covenants for another ing-houses, and that upon the expiration of the term the

term, must depend entirely upon the construction to lessor should either pay to him, his heirs. executors, ad

be given to the first lease. By this lease the lessee ministrators or assigns, the just and full value of the

was obligated to erect upon the leasehold premises, buildings, or such of them as should remain on the prem

within two years from its commencement, four or tses, or should grant to him or them a new lease for a more good and substantial brick dwelling-houses, and further term of fourteen years at a rent to be agreed

the evidence proved that obligation to have been fully upon by the parties or determined by appraisers. It

performed by him. Upon the expiration of the term, then declared that the new lease shall contain cove

it was then provided that the lessor would either pay nants, conditions and agreements, the same as those to him, his heirs, executors, administrators or assigus, herein contained."

the just and full value of the buildings, or such of Held, that but one renewal was provided for, and that the

them as should remain on the premises, or would new lease need not contain the covenant for renewal. grant to him or them a new lease for a further term of PPEAL from an interlocutory judgment, di

fourteen years. The rental for the new lease was to

be ascertained and determined either by the agreerected by the court upon a trial of this action at

ment of the parties, or the decision of appraisers the Special Term.

selected for the purpose of appraising the valuation of Nelson Smith. for appellants.

the property, and the rent was to be six per cent upon George Bliss and J. M. Hunt, for respondents.

that valuation, provided however that it should not be

less in any event than the rout reserved for the first DANIELS, J. The testator brought this action to

term. It was then declared in the lease that the new secure a lease for a second term of the premises situ

lease shall contain covenants, conditions and agreeated on the coruer of Elizabeth and Spring streets, in the city of New York. At the time when the action

ments, the same as those herein contained."

And it is upon this stipulation that the tenant prewas brought the premises were owned by the defend

dicated his right to a new lease, identical with the ants Peter McDonough, Marie Therese Furey and

first, for a second leasehold term in the property. Aud Lewis J. Furey. The original lease was executed by

authorities have been relied upon, which if they could Mary Davey, who was at the time the owner of the

at the present time be followed, would sustain this *To appear in 40 Hun, 526.

claim. For in Bridges v. Hitchcoch, 5 Browu Parl.

APPE

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Cas. 6, it was held that such a stipulation or covenant in the lease. But it does not, for the lease in that
in a lease entitled the lessee to succeeding leases with case contained no obligation requiring the second to
all the original stipulations, and that the lessee could include the right of renewal mentioned in the first.
demand from the lessor, his heirs, etc., such succeed- And the same is true of Harnett v. Yielding, 2 Sch.
ing leases in perpetuity. This authority was after- & Lefr. 549.
ward followed in Furnival v. Crew, 3 Atk. 83, and in The case of Iggulden v. May, 7 East, 237, is very de-
Cooks v. Booth, 2 Cow. 819. The subject was also con- cisive authority against the construction required to
sidered in Cooper Mining Co. v. Beach, 13 Beay. 478. maintain the plaintiff's action. So is that of Tritton
But there the covenant was tbat the lessor would v. Foote, 2 Brown C. C. 636, where the stipulation for
always, at any time, when and as often as required, the new lease provided that it should be subject to
renew the lease, which gave expression to the obliga- the same rents, covenants, reservations, conditions
tion much more favorable to the tenant than the and agreements in all respects. The language in that
phraseology of the lease in this action. The point was case was more comprehensive than in the present
likewise considered in Iggulden v. May, 9 Ves. 324, but lease, and still it was held to entitle the lessee to no
it was left undecided by the chancellor, who'suspended more than one additional term.
the action until a trial could be had and a construc- In Hyde v. Skinner, 2 P. Wms. 196, which proceeded
tion given to the lease, in an action at law. That trial upon a similar lease, the ruling was the same, and
afterward took place, and the court held that the ten- that of Baynham v. Guy's Hospital, 3 Ves. 295, is
ant was not entitled to an indefinite renewal of the equally as decisive against the rule of construction
term, but that he was limited to one additional term relied upon by the plaintiffs. This, it is true, was de-
of twenty-one years, notwithstanding the fact that the cided not by the chancellor, but by the master of the
succeeding lease should contain “ail covenants, grants rolls. But the same view was approved by the chan-
and articles, as in the said indenture or lease were con- cellor in Moore v. Foley, 6 Ves. 234. The lease how-
tained, and particularly such covenant for renewal as ever in that case was much broader in its language,
is contained therein." Iggulden v. May, 7 East, 237. providing for successive renewals as often as any of
This is an extreme decision, marking a wide depart- the lives mentioned in the first lease dropped out.
ure from the principle upon which the case of Bridges And that was entirely consistent with the right to re-
v. Hitchcock was decided, both in the Court of Chan- peated renewals of the same term.
cery and the House of Lords, and it was character- In Browne v. Tighe, 8 Bligh, 286; Piggot v. Mason,
ized by a disposition to restrict the right of the ten- 1 Paige, 412; Rutgers v. Hunter, 6 Johns. Ch. 215;
ant to but one additional term even when the lan- | Curr v. Ellison, 20 Wend. 178; Abeel y. Radcliff, 13
guage of the lease, if full effect had been given to it, Johns. 296; Bunker v. Braker, 9 Abb. N. C. 411; Cun-
would have entitled him to other succeeding like ninghum v. Puttee, 99 Mass. 248, the same subject was
terms in the property.

considered, but under leases uot as broad in their
In the case of Willan v. Willan, 16 Ves. 72, the lease covenants as this lease, or as the leases in many of the
covenanted for a renewal lease for a further term, aud other authorities. But in all of them the courts re-
80 on forever, or so long as the tostator or his assigns, ferred to the rule as established, which has been main-
etc., should hold the property, and this was consid- tained by the modern authorities, excluding the right
ered by the chancellor, as it certainly was, to be suffi- to more than one renewal under language similar to
cient to require repeated renewals. But there the that contained in this lease. These authorities iu-
language of the lease was such as plainly to express dicate the disposition of the courts to have been to
that obligation, while in this case it failed to declare depart from the rule of construction adopted and fol-
the intention of the parties in the same or any other lowed in the earlier cases, and to restrict the right of
equivalent manner. For what was agreed upon in the the tenant to one additional term, unless the lease
lease in suit was, that a new lease of the premises itself contains the express stipulation that the second
should be granted, and that it should contain cove- lease shall contain a covenant for a further renewal,
nants, conditions and agreements, the same as those or the creation of one or more succeeding terms. The
contained in the first lease. What the parties principle sustained by these authorities is obligatory
appear to have contemplated was one additional | upon the plaintiffs in this action, and excludes the
term in the premises, and the language which right to another lease with covenants for a third term
they used to express their intention was not enlarged in the leasehold property; and for that reason this ac-
by the obligation to which the tenant was subjected, tion so far cannot be sustained. There are, as has
of rebuilding the buildings in case of their destruction already been stated, certain attributes in the present
by fire or otherwise. For the portions of the lease case that did not enter into many of those sanction-
providing for a renewal, or the creation of another ing this restriction of the law. But they are not such
term, were in no manner referred to or enlarged by as would, in view of the strong expressions made use
that part of it which was inserted to create this obli- of by the courts in the decisions in the latter cases,
gation. But the right to the additional lease or term justify a departure from the principle upon which
remained dependent upon what had been before in- they have proceeded.
serted in the lease. And it has been the policy of the In no manner was the claim brought into the case
courts since the earlier decisions, to which reference that the plaiutiff or the lessee had become liable for
has been made, were pronounced, to consider stipula- rent for the occupancy of the premises duriug a por-
tions or covenants of this description in such a man- tion of the second term, or since the expiration of
ner as to limit them to one additional term.

that term. No defense or claim of that description The rule of construction became settled at an early was, in any form, brought into the case by the pleaddate that a covenant for renewal, or for an additional ings, and there was no foundation for the reference term, should not be held to create a right to repeated ordered to ascertain the extent of the obligatious of grants in perpetuity, unless some sufficient consider- the plaintiffs for rent in arrear. ation for such grant was made to appear, and the As to that part of the judgment it was unauthorized parties had expressed themselves upon this subject in and it should be reversed, but as to the residue, as the language devoid of all ambiguity. The case of Shep- second term bad already expired, the judgment should ard v. Dulan, 3 Drury & Warr. 1, has been cited as be aflirmed, but without costs of the appeal. another authority requiring a more enlarged principle Brady, J., concurred. of construction to be applied to the language contained Judgment atfirmed, without costs.

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INSURANCE-FIRE-CONDITION AGAINST ANY its recovery, is held in the cases referred to not to opOTHER INSURANCE-OTHER INSUR

erate in avoidance of a policy containing the ordinary ANCE INVALID.

stipulation agaiust such further insurance. Conspicuous among the later cases which adopt this view are

the following: Sutherland v. Old Dominion Ins. Co., INDIANA SUPREME COURT, MAY 25, 1886,

31 Gratt. 176; Insurance Co.v. Holt, 35 Ohio St. 189;

S. C., 35 Am. Rep. 601; Dahlberg v. St. Louis, etc., Co., PHENIX Iss. CO. OF BROOKLYN V. LAMAR.

6 Mo. App. 121; Gee v. Cheshire, etc., Co., 55 N. H. 65; Where an insurance policy containsa stipulation that it shall S. C., 20 Am. Rep. 171. To the foregoing may be

be void if any other insurance is taken, “whether valid added Hubbard v. Hartford Fire Ins. Co., 33 Iowa, or not," and other insurance is taken, which is shown by 325; 8. C., 11 Am. Rep. 125, which in a modified form extraneous facts to be invalid, the policy may be avoided holds the same general dootrine. by the company.

On the other hand, cases which seem well supported CTION on a fire insurance policy. The opinion

in reason proceed upon the theory that the only purstates the case.

pose for wbich provisions of the character under con

sideration are inserted in policies is to protect the inGilchrist & De Bruler, for appellant.

surer against the hazard of overinsurance, by taking E. M. Swan, for appellee.

away the motive which the insured might otherwise

have for the destruction of his own property. Other MITCHELL, J. This was a suit by William S. Lamar insurance taken without conseut, whether valid or against the Phenix Insurance Company to recover for not, is held to avoid the policy in violation of which it an alleged loss by fire under a policy of insurance is- has been taken. The assumption is that the vigilance sued upon the property of the former. The policy of the property owner will be stimulated to guard contained this condition: “If the assured shall have, against loss, by requiring him to maintain such relaor shall hereafter make, any other insurance, whether tion to the property insured or that its destruction by valid or not, on the property hereiu described, or any fire shall not inure to his pecuniary benefit. part thereof, without the consent of this company Such being confessedly the purpose of the contract, written hereon," this policy shall bo void. The insur- it is not perceived how its object is in any degree proance compauy answered that the condition above set moted by the conclusion, that notwithstanding the out had been violated in this: “that the insured had, insured may have intended to secure overinsurance, prior to the receipt of the policy ou which suit was and may have firmly believed that he had succeeded brought, accepted a policy of insurance for $500, COV- in doing so, it is only when the attempt is actually ering a part of the property insured, which policy so suocessful that the prohibitory condition is operative. accepted had been issued by the Germania Insurance It might be said with much reason that such & conCompany of New York, and which remained in force struction defeats the purpose of the provision, and at the time that in suit was taken out, and that no renders it practically nugatory. consent to this latter policy was indorsed on the policy Moreover to hold that only such other insurance as in suit, or was otherwise given. To this it was replied is not void, and cannot be avoided by extraneous that the Germania policy contained a provisiou avoid- tacts, is within the prohibition of the contract, affords ing it in case of the existence of subsequent procure- | the opportunity for the anomalous spectacle of an inment of other insurance upon the property thereiu de- sured avoiding the effect of apparent overinsurance, scribed, unless specially agreed to in writing in or and compelliug payment of oue policy by exhibiting upon such policy; that at the date the Germania pol- his own turpitude in obtaining another. icy was received the assured held a policy for $2,000 It is beld iu some cases that subsequent to further issued by the Home Insurance Company of New York insurance, created by policies which are totally void, covericg the same property; and that no consent by is no obstacle in the way of a recovery on the policy the Germania had been given to the policy which the on which the claim is made. Rising Sun Ins. Co. v. assured held in the Home, and that for that reason the Slaughter, 20 Ind. 520. If however such policies are policy held in the Germania was, and bad been at all voidable only for some breach of condition for which times invalid and void. Upon demurrer this was held the insurer might avoid them, they are within the proa suficient reply. A recovery was accordingly had for hibition against further insurance. Funke v. Minnethe amount stipulated in the policy.

sota, etc., Ins. Ass'n, 29 Minu. 347 ; 8. C., 43 Am. Rep. The reply, it will be observed, seeks to avoid the ef- 216; Baer v. Phænix Ins. Co., 4 Bush, 242; Sugg8 v. feet of the condition against other insurance, by the Liverpool, etc., Co., 9 Ins. L. J. 057; Landers v. Waterassumption that only such other insurance as is valid town Ins. Co., 86 N. Y. 414; S. C., 40 Am. Rep. 554; and enforceable is within the inhibition of the contract. Bigler v. Ins. Co., 22 N. Y. 402; Lackey v. Georgia Ins. Since however there is put forward no claim of mis- Co., 42 Ga. 459; David v. Hartford, etc., Co., 13 Iowa, take, surprise or other circumstance wbich would au- 69; Carpenter v. Providence, etc., Co., 16 Pet. 495. thorize a modification of the condition, or relieve the It is however not necessary for us to determine or insured from its effect, the contract, as the parties further intimate an opinion upon the proper construchave deliberately chosen to make it for themselves, tion of a policy which simply stipulates that other inmust furnish the measure of their rights. The inquiry surance taken without the cousent of the insurer shall must be, what have the parties agreed to?

render the policy void. It may well be assumed that In determining the liability of insurance companies the prevailing uncertainty and contrariety of opinion stipulations similar to that above set out have been on that subject was the efficient cause for introducing the subject of much discussion, and not a little con- into the policy sued on the phrase which distinguishes trariety of opinion. There are cases in which the con- it from the policies involved in the cases referred to. dition in respect to further insurance is general, and The contract is that other insurance, “whether valid the conventional phrase, “whether valid or not,” or not," taken without the written consent of the inbeing absent, which proceed upon such a construction surance company, shall render the policy void. It was of the contract as brings within its probibition only thus agreed that the validity or invalidity of other insuch other insurance as is valid and enforceable. That surance, taken without the written consent of the inother insurance has been taken by the insured, which surer, should not be the subject of future contest. at the time of the loss is inoperative or voidable, so Any contract of insurance so held or accepted was to that no action could be successfully maintained for reuder the policy in suit void. This agreement was

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not agaiust public policy nor prohibited by law. So was killed, as they believed, by Samuel Marley. Marfar as appears, it was, with a full comprehension of ley fled the country shortly after the death of Martin its terms, deliberately entered into. It is therefore Archer, but the appellant and his kinsman believed to have effect according to its plain and obvious mean- that Bunch, the deceased, harbored him and assisted him ing. Northwestern, etc., Co. v. Hazlett, 105 Ind. to escape. They watched the house of Bunch for sev. Continental Ins. Co. v. Hulman, 92 Ill. 145; S. C., 34 eral days and nights, and received information which Am. Rep. 122; Liverpool, etc., Co. v. Verdier, 35 Mich. led them to believe that he assisted Marley to flee, and 395.

this excited in them angry and revengeful feelings. So far as appears, the policy in the Germania Insur-They ascertained that Bunch, on the afternoon before ance Company was regarded both by the insurance his death, had gone to a secluded place to secure some company which issued it and the insured, as being of his hogs which had broken into the field of a neighvalid and in force at the time when the policy in suit bor named Ryan. There they forcibly seized and was accepted, as well as when the loss occurred. What- bound him with hickory withes. The place where he ever we might conclude in respect to the ordinary con- was seized and bound was in Martin county. He was dition concerning further insurance, we are clear that detained in this place for some hours, and then taken to where the parties, as in the case before us, had stipu- a cave in Orange county called “ Salt peter Cave.” This lated in their contract that other insurance, whether cave was about two miles distant from the Martin valid or not, shall avoid the policy, the effect of such county line. The men who captured and bound him a stipulation cannot be avoided by showing that the were armed with guns and pistols, and with these in prohibited insurance was invalid. As applicable to a hand, and ready for instant use, they took him to the policy embracing a condition of that description, this cave, where they shot him many times, each emptying general principle may be stated: If the prohibited the contents of his gun or pistol into his body. His policy held or received by the insured is in and of body was left lying in the cave for some days, when it itself invalid and void, so that it in fact constitutes no was taken out and burned. contract of insurance, it will not affect the validity of From these circumstances and from the declarations that under which the claim for indemnity is made; of the appellant and those who united with him in the but if to avoid it requires the production of facts ex- murder of Bunch, it is evident that the capture was traneous to the policy, it will be within the condition made pursuant to a preconceived plan to take his life. against further insurance, and unless consented to, This conclusion is fully warranted by the evidence, will render the other voidable. We are thus led to the and is undoubtedly that reached by the jury. The conclusion that the court erred iu overruling the de- circumstances unite with great strength in proof of murrer to the reply.

the fact that the seizure aud binding of the deA further question arising upon the evidence is sug- ceased were part of a previously arranged plan, and gested; but as upon the facts disclosed it cannot be that the appellants, with at least four others, material, in view of future considerations, that we de- joined in arranging and executing this plan. It is true cide it, without considering that question, the judg- that Lynch, who was present and assisted in killing ment is reversed with costs, with directions to the Bunch in the cave, testified when called as a witness court below to sustain the demurrer to the second by the State, that the purpose to kill the captive paragraph of reply, and for further proceedings not was not communicated to him until the cave was inconsistent with this opinion.

reached; but nevertheless the circumstances conclu-
sively prove that the capture was made with the in-
tention and purpose of taking the life of the captured

man. Forcibly seizing and binding a man without CRIMINAL LAW-JURISDICTION-ONE CRIME

legal excuse or justification is an assault, and if done COMMITTED IN TWO DIFFERENT COUN

for the purpose of carrying into execution a preconTIES-CONSTITUTIONAL LAW.

ceived plan to murder the person so seized and bound,

is an initial step in the crime. An assault is an eleSUPREME COURT OF INDIANA, MAY 24, 1886.

ment in the crime of murder, and the assault first made

in this instanoe constituted an important step in the ARCHER V. STATE.

crime, for it kept the victim within the power of his

captors until the cave was reached on the night of his A conspiracy to take the life of the deceased was formed in

death. The crime which culminated in the death of Martin county. Pursuant to that conspiracy he was

Bunch in the cave in Orange county was a single one, there seized and bound, and then taken into the county although composed of several elements, and the acts of Orange and there killed. Held, that under the statute

done in Martin county were not distinct criminal acts, of Indiana, providing that where a crime is committed partly in one county and partly in another, the jurisdic-joining county. Suppose, for the sake of illustration,

but were parts of one crime consummated in the adtion is in either, the courts of Martin county had jurisdiction,

that a man is seized, bound and gagged in one county,

pursuant to a preconcerted plan; that while he is thus opinion states the

helpless he is taken to a cave in another county, and

there left to die: would it be doubted that the first Moser & Houghton, for appellants.

act-the seizure and binding-was but a part of the

crime of murder? There is no difference in principle Attorney-General, for State.

between the supposed case and the real one; for of the ELLIOTT, J. The appellant was jointly indicted act is a material part of the crime, then no matter with eight others for the murder of Samuel A. Bunch. where death results, the place of the crime, according The State elected to try the appellant separately, and to the weight of authority, is at common law in the the trial resulted in a judgment declaring him guilty county where the first material act was committed. of murder in the first degree, and adjudging that he There is some conflict in the old common-law ausuffer the penalty of death. The indictment was re- thorities as to whether the jurisdiction is in the courts turned by the grand jury of Martin county, the trial of the place where death occurred or in those of the was had in that county, and judgment was there pro- place where the fatal blow was given; and in order to nounced. The facts, as we gather them from the evi. remove all doubt, the body was sometimes taken to dence, are these: Martin Archer, a kinsman of the the county where the blow was struck. Riley v. State, appellant and five of the persons indicted with him, 9 Humph. 657; People v. Gill, 6 Cal. 637; State v. Ges

case.

THE

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sert, 21 Mimn. 369; Com. v. Macloon, 101 Mass. 1; Com. obnoxious to legal objections." Green v. State, supra. v. Parker, 2 Pick. 550; Tyler v. People, 8 Mich. 320; So here, if we consider the seizure and binding of the Green v. State, 66 Ala. 40; S. C., 41 Am. Rep. 744; deceased at the commencement of the crime, the case Steerman v. State, 10 Mo. 503; Hunter v. State, 40 N.J. is withiu the statute; but here we have the further L. 495.

element that the criminal assault upon the person of If however the crime was committed in part in one the deceased was essential to the consummation of the county and consummated in another, jurisdiction at crime in the case in Orange county, to which he was common law would seem to be in the county where carried a captive by those who slew him. the first material step in the crime was taken. Mr. If it be true that the unlawful seizure of the deBishop says: "In reason, and according to the better ceased in Martin county was part of the crime, then authorities, when a crime is really committed in part the constitutionality of the statute is clear, for there in one county, and in part in another, the tribunals of is no substantial diversity of opinion as to the power either may properly punish it, provided that what is of the Legislature to provide what county shall have done in the county which takes the jurisdiction is a jurisdiction where a crime is committed in two counsubstantial act of wrong, and not merely some inci-ties, part being committed in each jurisdiction. There dental thing innocent in itself alone.” 1 Bish. Crim. is perhaps some diversity of opiuion as to whether a Law (7th ed.), S 116.

statute is constitutional which provides for the punThere were not only preparations in Martin county ishment of a crime in a county where no material part to commit the specifio crime finally consummated in of the crime was committed; but even upon this quesOrange, but there was an overt act, forming a mate- tion the very decided weight of authority is that the rial part of the crime committed in the former county Legislature may provide for the punishment of the and the parties would be indictable at common law crime in either of the two counties where any part of in that county. “Dynamiting and Extraterritorial the crime is committed. Tippins v. State, 14 Ga. 422; Crime,'' 16 Crim. Law Mag. 155.

Steerman v. State, 10 Mo. 503; State v. Pauley, 12 Wis. The acts done by the appellant and his associates 537; Com. v. Parker, 2 Pick. 558; Tyler v. People, 8 were, we repeat, part of the crime; they were material, Mich. 320; Com. v. Maclocn, 101 Mass. 1; State v.Johnand they were substantial wrongs, so that it would son, 38 Ark. 568; Green v. State, supra; Hanks v. State, seem that even at common law jurisdiction would 13 Tex. App. 289; Hum v. Stute, 4 id. 645; Ex parte vest in the county where those acts were committed. Rogers, 10 id. 655; Adams v. People, 1 N. Y. 173. We are not however to decide this case upon the rules In the case before us we regard the assult upon the of the common law, but upon the provision of our stat- deceased in Martin county as an essential part of the ute which reads thus: “ Where a public offense has crime, and as “an act requisite to its consummation," been committed partly in one county and partly in and we do not doubt that the Legislature had power another, or the acts or effects constituting or requisite to provide for the punishment of the crime, either in to the consummation of the offeuse occur in two or the county where it was commenced or in the county more counties, the jurisdiction is in either."

where the last act was done. This power is often necThe case before us comes within this statute, for the essary in order to prevent an absolute failure of juspurpose to kill was formed in Martin county, the tice; por is its existence doubtful, for it has ever been seizure and binding of the deceased took place there, the law, illustrated and declared by a great number the plan of carrying it into execution was there re- of cases, that a crime committed partly in one jurissolved npon, and was there so far executed as to de- diction and partly in another may be punished in prive the deceased of his liberty, and bring him within either jurisdiction. I Hale P. C. 430, 431, 615-617; Rethe power of those who designed to slay him. These gina v. Michael, 9 Car. & P. 356; People v. Adams, 3 Den. were acts of a criminal character, constituting a part 207; Bulwer's case, 7 Coke, 26, 3b; King v. Burdett, 4 of the offense. Not only were they acts constituting Barn. & Ald. 175; Com. v. Andrews, 2 Mass. 14; Com. a part of the crime, but they were also acts “requi- v. Holder, 9 Gray, 7; Simmons v. Com., 5 Bin. 619; site to the consummation of the offense,” for it was Simpson v. State, 4 Humph. 461. the seizure of the deceased, and the power obtained We have had for many years a statute founded upon over him by that seizure, that enabled the appellant this principle, and its validity was sustained in Beal and his associates to conduct him to the cave in Or- v. State, 15 Ind. 378. In a still more emphatic way is ange county, and there kill him. If it had not been this principle recognized in Kizer v. Woods, 60 Ind. for the capture in Martin county the enemies of Bunch 538, where it was held, that although the felonious incould not have taken him to the place where he met tent, constituting, as is well know), an essential elehis death at their hands, and it was therefore the un- ment of the crime of larceny, was formed in Ohio, yet lawful seizure that enabled them to consummate the as it was not consummated by a taking until the propcrime of murder, according to the plan conceived by erty and the thief came into this State, the crime them. The capture in Martin county was as material might be punished here. The decided cases fully supto the consummation of the crime as almost any other port this doctrine. State v. Underwood, 49 Me. 181; step taken by the criminals, since it was the act which State v. Burtlett, 11 Vt. 650. made it possible for them to take him to the place se- There is, as we understand the authorities, no real lected for slaying him. It was the act which put bim conflict of opinion as to the power of the Legislature in their power, and enabled them to take him from the to provide for the punishment of a crime partly comcounty where he lived to the place chosen, in another mitted in one jurisdiction and partly in another in county, and there take his life; for if the capture had either jurisdiction; but there is a sharp conflict as to not been effected, the felonious purpose must have whether death can be said to be a part of the crime of been consummated, if at all, in the county of which murder; many of the authorities maintaining that he was a resident. In construing and sustaining the death is merely the consequence of the crime; many validity of a statute similar to ours, it was said by the of the authorities, on the other hand, maintaiving Supreme Court of Alabama tbat if then we consider with much reason that death is a part of the crime, the fatal shooting of the deceased as the commence- for unless it results within a year and a day the ofment merely of the crime of murder charged in the fense cannot be murder. “Jurisdiction in Guiteau's indictment, and that the death of the injured person Case,” 2 Crim. Law Mag. 804. But we bave no reason was the consummation of the offense in Georgia, the to enter upon this contested ground, as the acts comstatute conferring jurisdiction on the Circuit Court of mitted in Martin county were substantive criminal Colbert county, the alleged venue was valid, and not wrongs, forming esseutial parts of the crime.

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