dent, has been delicate, trying and embarrassing. An
official examination must be instituted of all the cir-
cumstances before an intelligent judgment can be
formed as to his official conduct. Meantime, until the
contrary appears, he must be credited with the dis-
charge in good faith of his responsibilities to both the
outgoing and incoming governments. It may not be
easy to say how far the granting asylum to the de-
feated Chilians has contributed to the irritation which
has threatened to strain the relations between two gov-
ernments whose interests and policy demand that they
should remain on friendly terms.

Whether any course could have been followed by the
minister resident of the United States during these
troublous times, by which these complications could
have been avoided, may not be determined offhand.
It is represented that the United States has recognized
the right of asylum involved in the recent action of
its minister at Santiago, and that the new government
of Chili has expressly recognized this. The printed
personal instructions to diplomatic agents issued by
the State department of the United States in 1885 con-
tains, among other, this language: "This privilege (of
asylum) however does not embrace the right of asylum
for persons outside of the agent's diplomatic or per-
sonal household. In some countries, where frequent
insurrections occur, and consequent instability of gov-
ernment exists, the practice of extra-territorial asylum
has become so firmly established that it is often in-
voked by unsuccessful insurgents, and is practically
recognized by the local government to the extent even
of respecting the premises of a consulate in which such
fugitives may take refuge. This government does not
sanction the usage, and enjoins upon its representa-
tives in such countries the avoidance of all pretexts for
its exercise. While indisposed to direct its agents to
deny temporary shelter to any person whose life may
be threatened by mob violence, it deems it proper to
instruct its representatives that it will not maintain
or countenance them in any attempt to knowingly
harbor offenders against the laws from the pursuit of
the legitimate agents of justice."(1)

The conclusion must be that it is the interest of all
civilized and stable nations to discountenance the use
of their legations and consulates to shield the citizens
of a country from the action of their own government.
The answer however to the inquiry as to what com-
munities may be deemed "civilized" and stable,"
for the purposes of the enforcement of this rule of po-
litical conduct, may often become a delicate and diffi- |
cult application. And exceptional circumstances will
probably continue to arise and present cases which
must be disposed of on the individual responsibility of
the minister. As it is always the unexpected that
happens, it becomes of the first importance that the se-
lection of diplomatic representatives to communities
which lack either "civilization or "stability" should
be made with special reference to their capacity to
deal with the most delicate questions of policy and di-
plomacy.
ALEXANDER PORTER MORSE.
WASHINGTON, D. C., Jan. 9, 1892.

CRIMINAL LAW. - DEATH IN ONE STATE
FROM WOUND INFLICTED IN ANOTHER.
WEST VIRGINIA SUPREME COURT OF APPEALS, FEB.
6, 1892.

EX PARTE MCNEELY.

The latter clause of section 6, chapter 144, of the Code (1891),
providing that "if a person be stricken or poisoned out of
this State, and die by reason thereof within this State, the
(1)1 Whart. Int. Law Dig. 692.

offender shall be as guilty and may be prosecuted and punished as if the mortal stroke had been given or poison administered in the county in which the person so stricken or poisoned may so die," is not unconstitutional or invalid.

Section 3 of article 3 and amendment 6 of the Constitution of the United States apply to offenses against the United States and proceedings in its courts, and not to offenses against a State or proceedings therefor in the State courts.

'RROR to Circuit Court, Logan county.

ER

Petition

of Stuart McNeely for a writ of habeas corpus to discharge him from the custody of the jailer of Logan county. From a judgment denying the writ the petitioner brings error. Affirmed.

Vinson & McDonald, for plaintiff in error.
Alfred Caldwell, Atty.-Gen., for the State.

BRANNON, J. Stuart McNeely filed his petition in
July, 1891, in the Circuit Court of Logan county,
praying for a writ of habeas corpus to discharge him
from the jail of that county, and upon demurrer the
court refused to award the writ, and dismissed the pe-
tition, from which action of the court he has obtained
this writ of error. The petition states that in 1891
Frank Hurley died from gunshot wounds inflicted by
McNeely while both were in the State of Kentucky,
standing between high and low-water marks, about
ten feet above the water's edge, on the Kentucky side
of the Tug fork of Big Sandy river, formerly called
the East fork;" that Hurley died in Logan county:
that McNeely is confined in the jail of Logan county
upon criminal process issued by a justice of that
county to answer for the murder of Hurley; that the
State of West Virginia has no jurisdiction over said
offense, because it was committed in Kentucky, and it
prays that a writ of habeas corpus issue for his relief,
and that he be discharged from custody. The petition
does not state any thing as to McNeely's citizenship.
The boundary line in that locality between the States
of West Virginia and Kentucky is as it was between
Virginia and Kentucky at the date of the formation
of West Virginia. Const. W. Va., art. 2, § 1; Code
Va., 1860, chap. 1, § 6. The stream called "Tug fork'
is here the boundary, and the line between the States
is its middle. Handly's Lessee v. Anthony, 5 Wheat.
374; 1 Bish. Crim. Law, § 150. I think it clear that
the mortal blow was given within the territory of Ken-
tucky. But Hurley died within the territory of West
Virginia, and under our Code, though the mortal blow
was given in Kentucky, this State has jurisdiction to
try McNeely if the provision be valid. Chapter 144,
section 6, reads as follows: "If a person be stricken
or poisoned in, and die by reason thereof out of, this
State, the offender shall be as guilty, and be prosecuted
and punished, as if the death had occurred in the
county in which the mortal stroke or poison was given
or administered. And if any person be stricken or
poisoned out of this State, and die by reason thereof
within this State, the offender shall be as guilty, and
may be prosecuted and punished, as if the mortal
stroke had been given or the poison administered in
the county in which the person so stricken or poisoned
may so die." It is relied upon as a chief point in the
prisoner's case that the latter clause of said Code sec-
tion is in violation of section 14, article 3, of the State
Constitution, and section 3, article 3, of the Federal
Constitution. Section 14, article 3, of the State Con-
stitution provides that the trials of crimes shall be “in
the county where the alleged offense was committed."
This raises the question, where was this offense com-
mitted, in a legal point of view, in Kentucky, where the
bullet struck its victim, or in West Virginia, where he
died? We must look to the common law to answer
this outside the statute. The ancient common law is

ent counties, the Tennessee court, under a statute pro-
viding that trial should "be in the county where the
offense may have been committed," said it repealed
the statute of 2 and 3 Edward VI, that the blow was
the offense, the death the mere result, and that it
never was the rule under the old common law that,
where death and blow were in different counties, the
trial could be in neither, and the trial must be in the
county where the blow was given. In Green v. State,
66 Ala. 40, it was held that a statute authorizing pros-
ecution for murder in the county where the blow was
struck, though death was out of the State, was valid,
the court saying that the wound was the offense, death
a sequence, rather than a constituent elemental part,
of the crime, and that without the statute the State
had jurisdiction. In State v. Gessert, 21 Minn. 369, a
person was stabbed in Minnesota and died in Wiscon-
sin, and it was held that the death in Wisconsin was
only a consequence of the act committed against Min-
nesota, and he was triable there. It was not based on
a statute. In State v. Kelly, 76 Me. 331, the doctrine
is asserted as common law that where the blow is
given is where the crime is committed. People v. Gill,
6 Cal. 637, holds the crime is where the blow is, and
where the place of trial is changed after the blow by
law it must be at the place fixed by law at date of
blow. In State v. Bowen, 16 Kans. 475, where the in-
dictment did not charge death to have occurred in the
State, where there was no statute on the question,
Brewer, J., said that, as the only act the defendant
does toward the death is giving the blow, that place is
the place where he commits the crime, and that the
subsequent wanderings of the wounded man, uninflu-

offense; that death simply determines the character of
the crime in giving the blows, and refers back to the
act and gives it quality.

said to have propounded the very unreasonable prin-
ciple that, if a person be wounded in one county and❘
die in another, his murderer could be tried in neither.
1 Hawk. P. C., chapter 13, section 13, thus states it:
"It is said by some that the death of one who died in
one county of the wound given in another was not in-
dictable at all at common law, because the offense was
not complete in either county, and the jury could only
inquire of what happened in their own county. But it
hath been holden by others that, if the corpse was car-
ried into the county where the stroke was given, the
whole might be inquired of by a jury of the same
county." In volume 2, chapter 25, section 36, Hawk-
ins states that as the more general opinion. Chitty
says in 1 Criminal Law, *178, that where the blow and
death were in different counties "it was doubted"
whether the murderer could be punished in either.
Blackstone says it could be punished in either county.
Bl. Com., bk. 3, p. 303. But that great English author-
ity on criminal law, Lord Hale, vindicates the ancient
common law from this reproach, saying: "At com-
mon law if a man had been stricken in one county
and died in another, it was doubtful whether he were
indictable or triable in either; but the more common
opinion was that he might be indicted where the stroke
was given, for the death is but a consequence, and
might be found though in another county." So says
East. 1C. P., chap. 5, § 128. In John Lang's Case, Y.
B., 6 Hen. VII, p. 10 (A. D., 1490), where the blow and
death were in different counties, the court said: "In
this case it hath been used after the death to bring the
dead man, to-wit, the body, into the county where he
was struck, and then to inquire and find that he was
struck and died of that." And in a case in 1491 Tre-enced by the defendant, do not change the place of the
maille, J., said, where the blow and death were in dif-
ferent counties: "It seems it is not material where
he died, for the striking is the principal point; but it
requires death, otherwise it is no felony; but whether
he died in one place or another is not material." Y.
B., 7 Heu. VII, p. 8. Abbott, C. J., in Rex v. Burdett,
4 Barn. & Ald. 169, held Hale's authority as superior
in this matter. Wharton, in 1 Criminal Law, section
292, says: "By the early English common law the
place where the mortal stroke was given had jurisdic-
tion in cases of homicide. As there seemed however
to be doubts in cases in which the blow was in one jur-
isdiction and the death in another, the statute 2 and
3 Edward VI, chapter 24, was passed, the effect of
which, though inartificially drawn, is to give the place
of death jurisdiction. This statute has been held to
be part of the common law in several States in this
country, but even where it is in force it does not, ac-
cording to the better opinion, divest the jurisdiction
of the place where the blow was struck." 1 Bish.
Crim. Proc., § 52. I think the proposition that the
prosecution may be where the blow is given, no mat-
ter where the death, was the rule under the ancient
common law, and certainly under the modern common
law as held in American courts. The true view is that
the blow is murder or not, according as it produces
death or not within a year and a day, and in all cases
an indictment lies in the county where the blow was
given. 1 Bish. Crim. Proc., § 51. President Garfield
received his wound in the District of Columbia, but
died in New Jersey, and under a statute that any one
"who commits murder within any fort, arsenal, mag-
azine, dock-yard or any other place or district or
country under the exclusive jurisdiction of the United
States *
shall suffer death," it was contended
that to say one commits murder within a district the
blow and death must both take place there, but on full
consideration it was held that the crime was com-
mitted within the District, because the blow was there.
Guiteau's Case, 47 Am. Rep. 247. In Riley v. State, 9
Humph. 646, where the death and blow were in differ-

**

The Case of Linton, 2 Va. 205, is said in Hunter v. State, 40 N. J. Law, 514, to be the only case holding that where a blow is given in one State, followed by death in another, there can be no prosecution in the State of the blow. No reasons are given by the court. I do not see how that decision was reached, except on the untenable ground of the alleged rule of the old common law that, where the blow is in one county, death in another, neither can try the case; by parity of reasoning, where blow is in one State, death in another, the State of the blow cannot prosecute. That must have been the reason, as Hawkins and Chitty, referring to that rule, are cited, and Blackstone, Hale and East, denying it, are not referred to. The statute

and 3 Edward VI, to remove the doubt about that rule, was not then in force, all British statutes having been repealed by the act of 27th December, 1792. 1 Tuck. Bl. Comm. 8; 1 Rev. Code, 1819, chap. 40. The fact that it is the place of the blow where the crime is committed is further sustained by the well-settled proposition that there can be no prosecution at the place of death merely, unless a statute authorizes it. 1 Whart. Crim. Law, § 292. The said statute of Edward was in force in Virginia under the ordinance in convention in May, 1776, declaring operative in Virginia all acts of the English Parliament of a general nature, not local to Great Britain, passed since the fourth year of the reign of King James I, when the Virginia Bill of Rights of June 12, 1776, was adopted, and it may be said that, as the statute of Edward allowed a prosecution in the county of death, thus making that county, in a legal sense, the county where the offense was committed, we must interpret the constitutional clause in question by the light of that statute. If the Virginia Bill of Rights, which remained unchanged down to the formation of this State, had used the word "county," as does ours, there would be force in the suggestion greater than there is, but it provided

1

that an accused should be tried by a "jury of his vicin-
age." Blackstone, in book 3, page 350, merely remarks
that the word "visne," from which jurors were drawn
at common law, was interpreted to mean “ county."
This word "vicinage," borrowed from old common
law, is not defined in Bouvier or Black in their law
dictionaries as meaning "county," but "neighbor-
hood, vicinity." It did not mean "county." In dis-
cussing the matter de quo vicineto-out of what neigh-
borhood-the jury shall come, 3 Co. Litt. 464, states
that it must be "of that town, parish or hamlet, or
place known out of the town, etc., within the record,
within which the matter of fact issuable is alleged,
which is most certain and nearest thereunto, the in-
habitants whereof may have the better and more cer-
tain knowledge of the fact." Chitty (1 Crim Law,
500) says the jury at common law must come "from
the very ville or place where the offense was com-
mitted," and that there was a challenge for want of
hundreders on the jury." Far back under the com-
mon law murders were tried just where they occurred,
by close neighbors acquainted with the facts, as jurors
upon view of the body (super visum corporia). That
the vicinage was the neighborhood, not the county, is
plain from Proff. on Jury, section 80, and Thompson
on Trials, section 1. So it will appear from Har-
grave's note to 3 Co. Litt. 464, where it will also appear
that, while a statute in Anne's reign altered this in
civil cases, allowing the jury from the body of the
county, it remained unaltered in criminal cases when
Hargrave wrote the note, and was not changed as to
felonies until 6 George IV, chapter 50, section 13, the
24 George II, chapter 18, only applying to actions on
penal statutes. Thus at the date of the adoption of
the Virginia Bill of Rights "vicinage meant "neigh-
borhood," "vicinity," not ". county." Judge Green so
thought, for in the opinion in State v. Lowe, 21 W. Va.
788, he says the word "vicinage," as used in the Vir-
ginia Bill of Rights, meant "vicinity," and was not
the equivalent of “county," and he ventures the opin-
ion that under it the statute allowing a trial in either
county, where an offense occurred within one hundred
yards of a line between two counties, would be consti-
tutional, but not so under our Constitution. And the
Massachusetts court, in Com. v. Purker, 2 Pick. 550,
held that, where the Constitution used the word
vicinity" in providing for the place of trial, it was
was not equivalent to “county." My own investiga-
tion of the old common-law books brings me to the
same conclusion with Judge Green. Therefore no
light upon the construction of the clause in question
in our Constitution is shed by the statute 2 and 3 Ed-
ward VI. When our Constitution was adopted that
statute was not law, because of the repeal of Eng-
lish acts in 1792, and if that act had not repealed it,
the closing chapter of the Code of 1849 would have
done so.

Again I doubt whether the statúte of Edward would apply anyhow, because it provided only, the blow and death both being in the kingdom, but in different counties, that the county of death might take jurisdic. tion, not applying to the case where the blow was out of the kingdom but the death within, and that this is so is apparent from the fact that Parliament passed a statute in second year of George II, providing where trial should be where blow and death happened, the one or the other, outside the kingdom. 1 Hawk. P. C. 94; 1 Chit. Crim. Law, *179. The case of a thief carrying goods from county to county, or from State to State, and punishable in either is not analogous. He himself, every moment, every where he goes, is actively committing crime. Thus I should think that, as at common law the place of the mortal stroke is the place where the offense is committed, and the place of death is not, and could only be made the place of trial

by statute, when our Constitution guarantees a trial in the county where the offense is committed it would mean the place where the stroke was given. Can a State punish an act done outside its territory? It seems to be an axiom that a State's criminal law is of no force beyond its limits. Whart. Conf. Laws, § 18; Story Conf. Laws, § 621; 1 Bish. Crim. Law, § 110. Story, J., said in The Apollon, 9 Wheat. 362, that laws of a country "must always be restricted in construction to places and persons upon whom the Legislature have authority and jurisdiction." It can be asserted that a crime committed in another country, and in violation of its laws, cannot by legislative fiction or construction be considered an offense in another country. This doctrine does not however apply to cases where a crime is perpetrated partly in one and partly in another country, provided, as Mr. Bishop says, "what is doue in the country which takes jurisdiction is a substantial act of wrong, not merely some incidental thing innocent in itself alone." But this brings us back to the same question again. The American States are distinct and separate, as between themselves, as to the administration of criminal law. Wherein a State assumes criminal jurisdiction over crimes done within another it would seem to be without power. If Hurley had died in Kentucky could this State try McNeely, even if she had a statute extending so far? Could she thus exercise power over soil, persons and acts without her territorial limits? There are two lines of reasoning applicable to this case. One is that, while the blow is the beginning in the criminal transaction, it is only the beginning. The wound is because of the wrong in planting the bullet in the body, that wrong yet operating toward the consummation, which is the death; that the prisoner's agency is yet active in all this, in the languishing, in the decay of the physical strength, in the dying, by reason of his wrong that started the process ending in death, and that its energy ceased not for a moment until death, and that he caused this death. The other is that the shot that planted the bullet is the wrong. With it the prisoner's action began and ended. The suffering and dying are acts not his, but acts of the deceased, mere consequences or results of his act. He is answerable only because he started the force causing death; that he struck no blow in this State, and committed no breach of her peace or sovereignty. The former view is ably held in Com. v. Macloon, 101 Mass. 1, and Tyler v. People, 8 Mich. 320, and Com. v. Parker, 2 Pick. 350, while the latter view is held in 1 Bishop on Criminal Law, sections 112-116, and Bishop on Criminal Procedure, sections 51 and 52, and State v. Carter, 27 N. J. Law, 500. I must for myself say that I have not been able to relieve myself from serious doubt as to the validity of the second clause of section 6, chapter 144, of the Code, subjecting to punishment here a person striking a blow outside this State, where the consequent death occurs within this State, because I regard the crime as committed where the mortal wound is inflicted. Under this statute, a man dealing a blow in California or Australia, if the stricken person comes here and dies, may be tried here, far away from the scene of the tragedy, where his character is known, far away from friends to aid in his defense, far away from the witnesses of the act, with no power in this State to compel the attendance of those witnesses. The law of California or Australia may punish the act under the same facts in a certain way, ours with more severity. Does the prisoner know of our law when he strikes the blow? Is he bound to know our law? He is not. Neither in fact does he know, nor in theory is he bound to know, our law when he delivers the blow. He cannot tell into which one of the many countries of earth the victim may wander within the year and day before death, and he cannot study the laws of all