at another in a neighboring State, even though he misses him altogether, provided the bullet or other missile reaches the territory of the latter State. The assailant is presumed to follow up his bullet, and constructively makes the attempt to kill in the State where the bullet strikes.8

A criminal conspiracy is complete where the conspiracy is entered into, without regard to the further perpetration of the illegal act which is the subject of the conspiracy. Hence if the conspiracy is entered into in one State to execute a criminal act in another, the situs of the conspiracy is the former State, and that State has jurisdiction of that offense. And while it is a general rule of municipal law that the performance of the criminal act itself merges the conspiracy, it may well be doubted if this result would follow in cases where the conspiracy occurs in one State while the criminal act itself takes place in another.

So accessaries before or after the fact in one State to a felony committed in another are guilty in the State where they become accessaries. That State is the situs of their crime, and they must be tried there.10

The situs of a forgery, it is said, is the place where the forged instrument is uttered and published with intent to defraud, not the place where the writing is falsely made, added to, or altered.11

Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75.

• Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note; Dealy v. United States, 152 U. S. 539; United States v. Britton, 108 U. S. 204; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654. See United States v. Howell, 56 Fed. 21. And this is true perhaps even though the act to be done in pursuance of the conspiracy is not an illegal act in the State where it is to be per formed. See Lacey v. Palmer, 93 Va. 159, 31 L. R. A. 822, 24 S. E. 930.

10 Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note; State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452; State v. Wyckoff, 31 N. J. L. 65; Johns v. State, 19 Ind. 421, 81 Am. Dec. 408; State v. Moore, 26 N. H. 448; 59 Am. Dec. 354. But see State v. Grady, 34 Conn. 118; Com. v. Chiovaro, 129 Mass. 497; Com. v. Pettes, 114 Mass. 311.

11 Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 83, note; Lindsey v. State, 38 Ohio St. 507; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654 ; Rogers v. State, 11 Tex. App. 608; Foute v. State, 15 Lea (Tenn.), 712. See Hanks v. State, 13 Tex. App. 289; Ex parte Carr, 28 Kan. 1. This is certainly the place of the utterance. But a forgery may be complete without utterance. The place of the completion of the offense is the locus delicti.

So, in the case of obtaining money or property under false pretenses, if the false representations are made in one State while the money or property is obtained in another, the crime is completed in the latter State, not in the former, for the false representations standing alone constitute no criminal offense. The latter State is the situs of the crime.12

The situs of a criminal libel is the situs of its publication. Hence one who publishes a libel in one State in a newspaper which circulates in another also, is liable to indictment in either State, or in both.18

With respect to the situs of the crime of larceny, some difficulty arises where the goods have been stolen in one State and are afterwards brought into another. A difference of opinion exists in such case whether or not the thief may be prosecuted in the latter State. On the one hand it has been said by eminent authorities that each step taken by the thief after he has stolen the goods constitutes a new asportation of them, and hence a new larceny, and that he is therefore guilty of the larceny of the goods in each State to which he comes bringing them with him."

As between two counties of the same State, it is admitted that a thief stealing goods in one county and carrying them into another may be tried in either county; the reason often assigned for the doctrine being the fiction above given. 15 But here there

12 Com. v. Van Tuyl, 1 Met. (Ky.) 1, 71 Am. Dec. 455; Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739. See United States v. Plympton, 4 Cr. C. C. 309; State v. Schaeffer, 89 Mo. 271, 1 S. W. 293.

13 Com. v. Blanding, 3 Pick. (Mass.) 304; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 93.

14 Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75, 82, note; People v. Staples, 91 Cal. 23; Kidd v. State, 83 Ala. 58; Powell v. State, 52 Wis. 217; Mack v. People, 82 N. Y. 235; People v. Burke, 11 Wend. (N. Y.) 129; Dixon v. State, 15 Tex. App. 480; McKenzie v. State, 32 Tex. Cr. R. 568, 40 Am. St. Rep. 795; State v. Underwood, 49 Me. 181, 77 Am. Dec. 254; Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172; Com. v. Andrews, 2 Mass. 14, 3 Am. Dec. 17; Com. v. White, 123 Mass. 433. But see Com. v. Uprichard,

3 Gray (Mass.), 434, 63 Am. Dec. 762; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92.

15 Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92; Strouther's Case, 92 Va. 789, 791.

is another principle of the common law that comes into play, prohibiting the injustice of a double punishment to the thief for the same offense, which would operate to prevent his punishment in both counties. The same system of law that originates the fiction furnishes this check upon it.

But as between two sovereign States this check is wanting. If the fiction is to prevail, there is nothing to prevent (indeed it is the sworn duty of the courts of each State to require) the punishment of the thief in both States, or in as many as he enters with the goods, provided the jurisdiction of his person can be secured. Certainly it would seem that the removal of the check upon injustice which is imposed when all the transactions take place in the same State, should, as between several States, remove also the fiction which is the origin of the possible injustice.

There are a goodly number of authorities which take this view of the question, and deny to the courts of the State whither a thief has taken stolen goods, in the absence of express statutes of the latter State, the right to try or punish him for the offense. And this would seem to be the better rule.16

In cases of crimes committed in a State by one constructively, though not actually, present there, as in case of a person in one State shooting a person in another, or sending him poisoned candy, etc., through the mails, an interesting question arises as to whether the criminal may be extradited to the State where the crime has been committed, under the provisions of the federal constitution to the effect that "a person charged with treason, felony, or other crime, who shall flee from justice and be found in another State shall, on demand of the executive

16 Strouther's Case, 92 Va. 789, 792; State v. Brown, 1 Hayw. (N. C.) 100; Simmons v. Com., 5 Binn. (Penn.) 617; Simpson v. State, 4 Humph. (Tenu). 456; Com. v. Uprichard, 3 Gray (Mass.), 434, 63 Am. Dec. 762; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92; Lee v. State, 64 Ga. 203, 37 Am. Rep. 67; Beal v. State, 15 Ind. 378; State v. Newman, 9 Nev. 48, 16 Am. Rep. 3. If the larceny in the first State is forcible and violent, making it a robbery, and the goods thus taken are brought into another State, it is certain that the party cannot be tried for robbery in the second State. This is true even as between two counties of the same State. Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 92.

authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." 17 This provision, according to the current of authority, implies that the accused must have been actually within the jurisdiction of the accusing State and must have fled therefrom. If in fact he was never within the jurisdiction of that State, he cannot by a fair construction of words be said to have fled from its justice.18

17 U. S. Const. art. iv. § 2, cl. 2.

18 Ex parte Smith, 3 McLean, 133; State v. Hall, 114 N. C. 909, 41 Am. St. Rep. 822; Jones v. Leonard, 50 Ia. 106; Hartman v. Aveline, 63 Ind. 344. In re Mohr, 73 Ala. 503. It is argued on the other side that if the wrongdoer can be said to be constructively present in the State of the crime for the purpose of giving it jurisdiction over the offense, his subsequent presence elsewhere can only be accounted for by the fact that (constructively) he has fled from that State. Certainly much failure of justice may result from the first doctrine. For instance, in State v. Hall, supra, a person standing in North Carolina shot another in Tennessee. The defendant was first indicted in North Carolina for the killing, but it was held that the crime was committed in Tennessee, and that the North Carolina courts had no jurisdiction to punish him. It was subsequently held that he could not be extradited to Tennessee, since he was not a fugitive" from the justice of Tennessee. Two judges strongly dissented. See 41 Am. St. Rep. 822, note, where the dissenting opinion is given in full.

PART VII.

SITUS OF REMEDIES.

CHAPTER XXII.

SITUS OF REMEDIES.

§ 205. Nature of the Remedy

-Form of the Action. It is an obvious proposition that the situs of the remedy is the forum in which the remedy is prosecuted. Hence the "proper law' controlling all matters pertaining to the remedy is the lex fori, just as the lex situs of every other element in a given case governs the effect of that element. In accordance with these principles, it is well established that all matters touching the remedy and the mode of procedure, whether the injury complained of be a breach of contract, a tort, or a question of title, are to be governed by the lex fori, regardless of the domicil of the parties or the situs of the cause of action.1

It is sometimes extremely difficult to discern whether a particular inquiry relates to the remedy, or is a substantive part of the cause of action or of the rights of the parties. The distinction however is one of the utmost importance, for upon it will often depend the "proper law" which should govern a case.2

1 Pritchard v. Norton, 106 U. S. 124, 129 et seq.; Bank v. Donnally, 8 Pet. 361; Ruhe v. Buck, 124 Mo. 178, 25 L. R. A. 178; Burchard v. Dunbar, 82 Ill. 450, 25 Am. Rep. 334; Hoadley v. Transportation Co., 115 Mass. 304; Russell v. R. R. Co., 113 Cal. 258, 45 Pac. 323, 324; Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 1138; Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29; Wicks v. Dawson, 42 W. Va. 43, 24 S. E. 587.

2 Instances of these difficulties have already been noted, and a criterion has been laid down in the case of contracts by which to ascertain whether a par