amount of damages recoverable, if limited in the statute creating the right to sue, and the persons who are to enjoy the benefit of the damages recovered. Thus the creditors of the decedent (unless perhaps they are citizens of the forum) should not be permitted to seize such damages, even though that course be allowed under the lex fori, if the lex delicti confers them upon certain members of his family free from his debts.

CHAPTER XXI.

SITUS OF CRIMES.

§ 203. Crimes generally Local, not Transitory. - Although it is true that in some countries, whose laws are based upon the Roman law, the principle has been established that the criminal laws of the State follow its citizens abroad, and that upon their return they are to be punished for their violations of the domiciliary law while abroad, the reverse is the general rule in those States whose laws are founded upon the common law system.1

It is admitted that the State has the power to enact criminal laws which may even follow its citizens abroad, and that, upon their return to its jurisdiction, it may punish them for their violations of such laws, even when those violations occur in other States; and in some instances, even in common law States, such laws have been enacted. But in the United States there is one limitation imposed upon the power of a State to punish exterritorial offenses against its laws. This limitation is that the accused should be a citizen of the State whose law he has violated at the time when the alleged foreign violation occurs. he resides in another State at the time of the act, though he was previously a resident of the State whose law he is accused of violating, or subsequently becomes such, he is not liable to punishment there. In this country, the criminal laws of a State can only operate upon citizens and persons actually or constructively perpetrating crimes within its jurisdiction.

If

1 Manley v. People, 7 N. Y. 295 ; State v. Mitchell, 83 N. C. 674; State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822; Com. v. Kunzmann, 41 Penn. St. 429.

2 Ex parte Kinney, 3 Hughes (U. S.), 9.

See Ex parte Kinney, 3 Hughes (U. S.) 9, 19, 20; Hanks v. State, 13 Tex. App. 289.

If the State has the power to enact laws which by their express terms punish acts of its citizens when committed abroad, it would seem to follow that the same effect must be given to necessary implication arising from the terms and circumstances of the law. In other words, should the policy of the law necessarily point to its exterritorial operation, it must be given effect as against the citizens of the State upon their return thither, if they have violated the law abroad. But the implication should be a necessary one.1

In ordinary cases certainly, the general principle of the common law is to be followed, that crimes are strictly local in character, and are to be punished only by the State in whose territory they are committed and in accordance with its laws. The lex loci delicti is the " proper law" here, as in the case of torts; but there is an essential difference between the two kinds of wrong, arising from the fact that, while a tort is an injury to an individual who may have his situs anywhere, a crime is an injury to the State where it is committed. This difference is that the responsibility for torts is in general transitory, and an action may be brought therefor in any State where jurisdiction of the defendant's person may be obtained, while the responsibility for crimes is usually local, no courts in general having jurisdiction thereof save the courts of the State where the crime is committed. This is based upon the idea that the crime is an offense against the sovereignty and good order of the State within whose jurisdiction it occurs, and that each State must attend to the vindication of its own sovereignty.

§ 204. Situs of Crimes. Although, as already mentioned, the general rule is that the locus delicti furnishes not only the

4 Ex parte Kinney, 3 Hughes, 9.

5 Manley v. People, 7 N. Y. 295; Com. v. Kunzmann, 41 Penn. St. 429; State v. Mitchell, 83 N. C. 674; State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822. See Johns v. State, 19 Ind. 421, 81 Am. Dec. 408.

6 Upon a somewhat similar principle it has been held, though often regretted, that the courts of one State will not attempt to enforce the revenue laws of another State (even though not criminal in character), a remarkable departure, it would seem, from the spirit of friendly comity which usually animates the intercourse of States with each other. See Story, Confl. L. §§ 245, 246; Henry v. Sargeant, 13 N. H. 321; ante, § 9.

law by which a crime is to be punished, but also the jurisdiction to punish it, it is not always easy to ascertain what is the situs of the crime in a particular case.

If a principal in the first degree in one State employs an innocent or irresponsible agent, sentient or inanimate, through whose aid he commits a crime in another State, the law regards the principal as himself present and acting through the agent or instrumentality at the point where the act is done, just as if he were actually and personally there. He may be in fact the citizen of another State, outside of whose limits he may never have set his foot, but he is nevertheless constructively present at the place where the crime takes effect, through the irresponsible agent set in motion by him.1

Thus, in Adams v. People,2 Adams was a citizen of Ohio who forged a paper and sent it to an agent in New York who knew not that it was forged. The agent there uttered the forged instrument. Afterwards A was apprehended in New York, charged with obtaining money there under false pretenses. It was held that the act of the innocent agent in New York was his act, and therefore that the situs of the crime was New York. The accused pleaded his Ohio citizenship, and that he was not at the time of the offense subject to New York law, but without avail.

The same principle is applied in cases where one, being in one State, discharges a gun or otherwise puts in motion an instrumentality, by which the death of a person results in another State. He is guilty of homicide in the State where the fatal blow takes effect, and is deemed to accompany his bullet or other instrumentality to its destination, and therefore to be constructively present there when it takes effect. And the fact that the mortal blow is given in one State while the death ensues in another does not alter the principle. The place of the mortal blow is the situs of the homicide, the death being a

1 Adams v. People, 1 Comst. (N. Y.) 173; People v. Adams, 3 Denio (N. Y.), 190, 45 Am. Dec. 468; Lindsey v. State, 38 Ohio St. 507.

21 Comst. (N. Y.) 173.

8 State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452; People v. Adams, 3 Denio (N. Y.), 190, 45 Am. Dec. 468. See Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89.

mere consequence. Although it has sometimes been doubted whether this was the rule at common law, the overwhelming weight of authority in the United States is in favor of this doctrine. The place of death is held to be immaterial. A familiar case of this kind is United States v. Guiteau. President Garfield was shot by Guiteau in the city of Washington and died at Long Branch, in New Jersey. The prisoner was tried and convicted of murder in the courts of the District of Columbia.

But if in the State where the death occurs the law provides expressly for the punishment of the criminal there, though the mortal blow is given elsewhere, it is said that the courts of the former State may assume jurisdiction to try the offender for the murder."

The same principle, it seems, governs in the case of an assault with intent to kill, as where one standing in one State shoots

41 Hawk. P. C. c. 13, sec. 13; 1 Chitty, Crim. Law, 178; 1 Hale, P. C. 426. See Com. v. Linton, 2 Va. Cas. 205.

5 United States v. Guiteau, 1 Mackey, 498, 47 Am. Rep. 247; Ex parte McNeely, 36 W. Va. 84, 32 Am. St. Rep. 831; State v. Gessert, 21 Minn. 369; State v. Bowen, 16 Kan. 475; State v. Foster, 8 La. Ann. 290, 58 Am. Dec. 678; Stout v. State, 76 Md. 317, 25 Atl. 299; State v. Carter, 27 N. J. L. 499; State v. Kelly, 76 Me. 331, 49 Am. Rep. 620; Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, and note; State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822.

61 Mackey, 498, 47 Am. Rep. 247.

7 Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89. In this case the mortal blow was given upon the high scas, the death resulting therefrom in Massachusetts. See also Tyler v. People, 8 Mich. 320, 333. It may be more doubtful whether the same rule would apply where the place of the mortal stroke is subject to a definite system of law of its own. The perpetrator commits no overt act in the State where the death occurs, and the constitutional power of that State to punish him may perhaps be questioned. The reasoning of the court however in Com. v. Macloon, supra, leans towards the constitutionality of such legislation. See Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note. But see State v. Carter, 27 N. J. L. 499; State v. Kelly, 76 Me. 331. If the accused has administered poison or delivered the blow in one State, which he believes has resulted in death in that State, and afterwards takes his victim into another State, where for the better concealment of the crime he decapitates him (the decapitation being the real, though unintended cause of death), the situs of the homicide is the latter State, not the former. Jackson v. Com., 100 Ky. 239, 38 S. W. 1091 [Pearl Bryan Case].