Defendant, residing in Frankfort, Benzie county, was arrested in Newaygo county. He continued to reside in Benzie county. It is claimed *Page 515 he shipped undersized fish over the Pere Marquette Railroad and that these undersized fish were seized in Newaygo county, and defendant was thereupon arrested and prosecuted in that county although at that time he was a nonresident thereof. There is no claim he was in Newaygo county at the time.
The prosecution is based upon the theory that defendant was constructively present in Newaygo county and may, therefore, be prosecuted in that county.
After these fish were shipped by defendant he was not in Newaygo county and cannot, therefore, be prosecuted in that county upon any theory of constructive possession of the fish in Newaygo county. There is no such thing as constructive criminal cases. Defendant was entitled to a trial by a jury of the vicinage. Swart v. Kimball, 43 Mich. 443.
"A citizen is arrested on a criminal accusation and carried off to a distant part of the State for trial. If he is poor and relies upon many witnesses for his exculpation, this will almost of necessity put it out of his power to make a complete defense: if he is a man of moderate means, the defense may ruin him." Swart v. Kimball, supra.
The statute (2 Comp. Laws 1929, § 6318 [Stat. Ann. § 13.1503]), under which defendant was arrested, provides that the possession of the illegal fish shall be construed to remain in the consignor until delivered to the consignee. The common carrier is not subject to the provisions of this act. The possession remained in the consignor in Benzie county.
"Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of English and American criminal law." Ex parte McNulty, 77 Cal. 164 (19 P. 237, 11 Am. St. Rep. 257). *Page 516
"We have not the slightest hesitation in declaring that the act of 1857 (Act No. 100, Pub. Acts 1857) so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution, and utterly void." Swart v. Kimball, supra.
"It cannot be seriously claimed that the prosecution can be had in a county where the crime was not actually or in contemplation of law perpetrated." Hill v. Taylor, 50 Mich. 549.
The record is entirely barren of any evidence that the crime with which defendant was charged had been committed in Newaygo county where the trial was had.
See, also, People v. Jackzo, 206 Mich. 183.
The crime of possession of illegal fish by defendant was not committed in Newaygo county. The trial court was not in error in holding defendant could not be prosecuted in Newaygo county but, if prosecuted at all, must be prosecuted in Benzie county.
CHANDLER, WIEST, and BUTZEL, JJ., concurred with POTTER, J. NORTH, J., concurred in the result.