delivered the opinion of the court.
Appellants, Jeff Atkinson and Will Atkinson, were indicted in the circuit court, .First district, Hinds county, for the murder of Joe Owens. Will Atkinson was convicted of murder and sentenced to the penitentiary for life. Jeff Atkinson was convicted of manslaughter and sentenced to the penitentiary for ten years. From these judgments they prosecute appeals to this court, which will be considered together.
Appellant interposed a plea to the jurisdiction of the court which was overruled. This action of the court is assigned for error.
The wound of Avhich the deceased, Owens died was inflicted in Leake county. Owens was brought from that county to the first district of Hinds county. Soon after the wound was inflicted from which Owens died affidavits Avere made before a. justice of the peace of Leake county charging appellants with an assault and battery upon him with a shotgun, a deadly weapon, with intent to kill and murder. Upon such affidavits warrants were issued for the arrest of appellants, who were accordingly arrested by the sheriff of Leake county and placed in jail in that county. Owens was brought from there to the *394Baptist Hospital, Jackson, First district of Hinds county, and there died. After the arrest and incarceration of appellants in Leake county it was agreed by the prosecuting attorney of that county and the attorney for the appellants that the cases then pending before the justice of the peace of Leake county 'should stand continued to await the result of the wound received by Owens. The matter thus stood at the time of the death of Owens; no further action having been taken in said prosecutions begun in Leake county. Immediately upon the death of Owens in the First district of Hinds county affidavits were made against appellants before a justice of the peace in that district charging them with his murder. After the institution of this prosecution in the First district of Hinds county the said prosecution begun in Leake county was dismissed by the county attorney of that county ^without any agreement to that effect with appellants or their attorney.
It is contended that the circuit court of the First district of Hinds county was without jurisdiction because the courts of Leake county had first acquired jurisdiction by virtue of the prosecution there begun as above set out. Appellants rely upon section 1407, Code of 1906 (Hemingway’s Code, section 1162), which provides, among other things, that where the mortal wound or other cause of death is inflicted in one county, and death occurs in another county, the offender may be indicted and tried in either county, and section 1406, Code of 1906 (Hemingway’s Code, section 1161), which is in this language:
“When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.”
It will be observed that the latter statute provides, in substance, that when a crime is committed partly in one county and partly in another, the jurisdiction shall be *395in either county, but the courts of that county where prosecution for such crime was first begun shall have the right to conduct the same to a final determination. The question therefore is whether the prosecution begun before the justice of the peace in Leake county which was pending until after the death of Owens was such a beginning of a prosecution for said offense as gave the courts of that county exclusive jurisdiction to proceed to a final judgment.
As it appears to the court this question is answered in the affirmative by the cases of Coleman v. State, 83 Miss. 290, 35 So. 939, 64 L. R. A. 807, 1 Ann. Cas. 406, and State v. Hughes, 96 Miss. 581, 51 So. 464.
It is contended on behalf of the state, however, that those cases are not decisive of the question here involved, because in each of those cases the crime charged had been entirely consummated when the first prosecution was begun, while in the case before the court the state says that the crime had not been completed until the death of Owens, which took place in the First district of Hinds county, and that therefore no prosecution for said crime could have been begun prior to that time in Leake county; in other words, that the prosecution begun in Leake county was not one for murder, but for a lesser offense, viz., shooting with intent to kill and murder, and therefore it was not the commencement of a prosecution in the meaning of said statute.
We hold, however, that the proceeding begun in Leake county was the beginning of a prosecution within the meaning of said section 1406, Code of 1906 (Hemingway’s Code, section 1161), for the following reasons: It should be borne in mind that the fatal wound which resulted in Owens’ death had already been inflicted when the proceeding in Leake county was begun. The criminal act had already been consummated. So far as appellants were concerned, they had done all they ever did do to perpetrate the crime. Section 1534, Code of 1906 (^Hemingway’s Code, section 1296), prescribes the duties of conservators *396of the peace in criminal cases. • Section 1461, Code of 1906 (Hemingway’s Code, section 1219), provides in substance that, if a person be dangerously wounded, the accused shall be committed to jail until it be known whether the wounded person will recover or not, unless it appear to the court of inquiry that in any event the crime would not amount to murder. Section 2753, Code of 1906 (Hemingway’s Code, section 2252), provides that, if on the trial of a criminal case the justice of the peace discover it is a felony of which the accused is probably guilty, instead of a misdemeanor, he shall not render a final judgment, but shall require the accused to give bail for his appearance in the circuit court unless it be a felony which is not bailable, in which case it shall be the duty of the justice of the peace to commit the accused without bail.
It was held in Ex parte Burke, 58 Miss. 50, that an affidavit charging a crime serves to procure the arrest of the accused, and, if the justice of the peace believe him guilty of a felony, he must bind him over, and the mitimus will be valid, although the affidavit before the justice of the peace only charge a misdemeanor. And it was held in Ex parte Smith, 79 Miss. 373, 30 So. 710, that where a defendant is charged with an assault and battery, and it appears that the death of the injured party resulted from defendant’s blows, it is not improper, but it is the duty of the justice of the peace, to bind the defendant over to await the action of the grand jury. In State v. Hughes, supra, in discussing what constituted the beginning of a prosecution for crime, the court said:
“The policy of our statute in regard to this is clearly outlined in section 1415, Code of 1906.”
Section 1415, Code of 1906 (Hemingway’s Code, section 1171), prescribes what shall constitute the beginning of a prosecution so as to stop the statute of limitations applying to criminal offenses, and is in this language:
*397“A prosecution may he commenced, within the meaning of the last preceding section, by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.”
We have here therefore a case where the fatal wound had been inflicted in Leake county, and a prosecution begun in that county which was pending when the wounded man died in Hinds county, which prosecution the justice of the peace before whom it was pending had the right under the law, on learning of the death of said decedent, Avithout any amendment to the affidavit already on file, or the making of a new affidavit charging murder, to proceed therewith, and to bind appellants over on the charge of murder to. await the action of the grand jury of that county. A prosecution had been begun in Leake county for the unlawful shooting of Owens, and this gave the courts of that county the exclusive jurisdiction of the crimes of manslaughter and murder resulting therefrom.
Section 26, Constitution of 1890, provides, among other things, that a defendant charged with crime shall be tried in the county where the offense was committed. Section 1407, Code of 1905 (Hemingway’s Code, section 1162), is not violative of this constitutional provision because at common law there was much confusion on this subject in the decisions of the courts — so much in fact that it Avas unsettled whether the situs of the jurisdiction of the crime of murder was in the county Avhere the mortal wound was inflicted or in the county where the death occurred. Some of the English courts held that the crime occurred in one county and some in the other; and some held that the offender was not indictable in either county. To remedy this condition the Statute of Edward VI was passed, which made the offense triable in the county where the death occurred. That it was competent for the legislature to provide for the trial of the offense either in the county Avhere the wound was inflicted or the' death occurred is set at rest, we think, by Stoughton v. State, 13 Smedes & M. 255. The coiirt said in that case:
*398“The case must turn on a different point. The wound was inflicted in Perry county, where the prisoner was indicted, but death occurred in Harrison county. In such cases there is an express statutory provision requiring that the indictment should be found in the county where the death occurs. Poindexter’s Code, 314. This statute seems to have been overlooked in the subsequent compilations, though it is not repealed; at least we have found no act repealing it. It simply provides that the indictment, found in the county in which the death may happen, shall be good and valid in law. The better opinion seems to have been that by the common law, when the blow was given in one county, and the death happened in another, the offender was not indictable in either. This, however, was a point that gave rise to doubts. The difficulty was obviated by the Statute of Edward VI, which made the offense triable in the county where the death happened. Our statute was passed with the same object. It does not, it is true, say the prisoner shall not be tried in the county where the stroke was given; and if it could be clearly shown that he was triable there by the common law, perhaps the statute might be regarded as giving the additional power to try him in the county where the death happened, without interfering with the jurisdiction as at common law. But as the question was, to say the least of it, doubtful at common law, the statute must be regarded as the only law on the subject.”
Indictments quashed, and cases reversed and remanded, and appellants ordered held to await the action of the grand jury of Leake county.
Reversed and remanded.