There are several exceptions in the record, but the only one argued by counsel in this Court involves the validity of the act of 1891, ch. 68, which provides that "if a mortal wound is (800) given, or other violence or injury inflicted, or poison is administered on the high seas or land, either within or without the *Page 557 limits of this State, by means whereof death ensues in any county thereof, said offense may be prosecuted and punished in the county where the death happens." This statute is the same, in totiden verbis, as the acts of Massachusetts and Michigan, and is substantially similar to the Act of 2 George II, and of many of the States of this Union. In sustaining the validity of this legislation the Supreme Court of Massachusetts in Commissioners v. McLoon, 101 Mass. (Gray, J.), remarked that "this statute is founded upon the general power of the Legislature, except so far as restrained by the Constitution of the Commonwealth and of the United States, to declare any wilful or negligent act which causes an injury to persons or property within its territory to be a crime, and to provide for the punishment of the offender upon being apprehended within its jurisdiction. Whenever any act, which if committed wholly within one jurisdiction would be criminal, is committed partly in and partly out of that jurisdiction, the question is whether so much of the act as operates in the county or State in which the offender is indicted and tried has been declared to be punishable by the law of that jurisdiction." Kerr Homicide, 225; S. v. Hall, 114 N.C. 909. The statutes referred to, and those providing that the offender may be indicted in the State where the assault is committed, although the death occurs in another State (The Code, sec. 1197), were evidently intended, among other reasons, to solve the much-debated question whether at common law the offender could be tried at all, that is, in either jurisdiction, the doubt suggested being that the offense was complete in neither. This uncertainty led to the enactment of 2 and 3 Edward VI, which provided that the offender might be tried in the county of the death, although the blow was inflicted in another county. This statute, either as a part of the common law or by reenactment, is in force in many of the States of the Union. The validity of such legislation does not (801) seem to have been questioned, but where the principle has been extended to cases in which the blow is in another State or county, it has been very vigorously assailed. It is insisted that the crime was complete where the blow was inflicted and that such legislation is therefore contrary to Article III, section 2, of the Constitution of the United States, which provides that the trial "shall be held in the State where the said crime shall have been committed." In Tyler v. People, 8 Mich. 319, the Court in sustaining the statute used the following language: "The shooting itself, and the wound which was its immediate consequences, did not constitute the offense of which the prisoner is convicted. Had death not ensued, he would have been guilty of an assault and battery, not murder; and would have been criminally accountable to the laws of Canada only. But the consequences of the shooting were not confined to Canada. They *Page 558 followed Jones into Michigan, where they continued to operate until the crime was consummated in his death."
This reasoning is quoted with entire approval in Commissioners v.McLoon, supra, and the Court, in speaking of the dissenting opinion in the foregoing case, said that it "proceeds upon the ground that no part of the criminal act of the defendant was done at the place of the death, a position which seems to us to be untenable, for the reasons already stated, and the ingenious arguments and illustrations adduced in support of which will not stand a critical examination." Mr. Bishop (1 Criminal Law, 112, 161) takes the opposite view, that death is but a consequence of the unlawful blow, and that the offender has committed no breach of the law in the jurisdiction where the death occurred.
We deem it unnecessary to enter into an elaborate discussion of this question, as it is exhaustively treated by Justice Gray in McLoon's case, supra, and by Justice Brandon, in the recent decision in Ex parte(802) McNeely, 36 W. Va. 84. In both of these cases, as in Tyler's case supra, the validity of this legislation is sustained.
In Hunter v. State, 40 N. J., 495, Chief Justice Beasley says that the contrary view indicated by the Justice in delivering the opinion in S. v.Carter, 27 N. J., 499 (cited by counsel), was "entirely extrajudicial," and he commends the courts sustaining statutes of this character as entitled to the highest respect. See also the authorities cited in S. v. Hall, supra.
In the United States v. Guiteau, 47 Am. Rep., 261, Mr. Justice Bradley said: "There is no doubt that the Legislature might have enacted, in so many words, that if either the mortal stroke should be given or the consequent death should happen within the territory, it should be deemed a murder committed here." The cases from Michigan and Massachusetts are directly in point against the position that the offense was wholly committed in the State where the blow was stricken. There are other cases which lead to a similar conclusion, though the precise question was not distinctly presented.
This view would, of course, take the case out of the supposed constitutional limitation, but it must be borne in mind that the provision of the Constitution referred to is not a limitation upon the power of the State. Even Mr. Bishop concedes that it is not a question of constitutional law. In McNeely's case, supra, while the learned Justice seemed to be of the opinion that the place of the blow was the place of the crime, he nevertheless came to the conclusion that there was no constitutional restriction upon the State to enact the law in question. He remarks: "Mr. Bishop, the great author, while resisting such statutes with reasoning which seems to me to be very strong and satisfactory, yet says that the question is not one of constitutional law, but one of international law, and properly *Page 559 admits that if a Legislature command a court to violate international law it is bound to do so. See Endlich Interpretation (803) of Statutes, 175. If, then, he be right in the question not being one of constitutional law, this Court could not, on his theory, refuse to execute this law. . . . In none but a case of very plain infraction of the Constitution, where there is no escape, will or ought a court to declare a statute unconstitutional. To doubt is only to affirm the validity of the law." After stating that there are no cases directly declaring such statutes unconstitutional, and instancing the cases ofMcLoon and Tyler, in which they were distinctly upheld, and other cases which concede their validity, the Court continues: "As to the contention that the statute before us violates Article II, section 3, of the United States Constitution, we need only say that it applies to the United States Court proceedings relating only to proceedings for offenses against the United States. So does Amendment 6; Fox v. Ohio, 46 U.S. 410;Cook v. United States, 138 U.S. 157; Baron v. Baltimore, 32 U.S. 243;Spies v. Illinois, 123 U.S. 131."
We are not inadvertent to the possible inconveniences attending the administration of this law, in cases where the blow is inflicted in distant places, but, as was said in Tyler's case, "the expediency or policy of the statute has nothing to do with its constitutionality." It is argued that the statute should be construed in reference to international law, and that it should be confined to citizens of this State who have inflicted mortal wounds elsewhere. It is sufficient to say that we have no authority to so restrict the plain and broad language of the law, and such was the ruling in the cases of McLoon and Tyler, supra.
After a careful consideration of the able brief of counsel, we must conclude that these authorities are sufficient to warrant us in sustaining the statute under consideration. It may be observed that S. v. Cutshall,110 N.C. 538 (cited on the argument), expressly refrains from passing upon this question, and impliedly recognizes the validity of such legislation in cases of homicide. In that case it was clear that the (804) crime of bigamy was fully completed in South Carolina.
The other exceptions growing out of the provisions of the statute, such as variance and the like, must, under the view we have taken, be overruled. What the indictment should charge as to the place, etc., is satisfactorily discussed in McLoon's case and sustains the ruling of his Honor. The other exceptions were not pressed on the argument, but should be noticed. We can see no error in admitting the dying declarations of the deceased, as testified to by Dr. Rone. Under the circumstances stated by this witness, and especially the conversation at the time of the declaration (in which deceased said he would have to die, that he could not live with his head crushed in that way, the witness *Page 560 telling him that he thought he would die, but hoped he would get well), we think the court was warranted in admitting the testimony. The fact that another witness had told the deceased, just before the doctor saw him, that the doctor had hopes of him, cannot alter the result. This was subsequently corrected by the doctor himself.
Neither is there any merit in the objection to the statement of the prisoner before the justice of the peace. It does not appear that there was any judicial investigation before him.
The plea in abatement was also properly overruled. S. v. Merritt,83 N.C. 677.
After a careful examination of all the exceptions in the record, we see no reason for disturbing the judgment of the court below.
No error.
Cited: S. v. Patterson, 134 N.C. 617, 618; S. v. Alexander, 179 N.C. 764.
(805)