not to the taking of life." Hash v. Com., 88 Va. 172, 13 S. E. 398. See also, Montgomery v. Com., 98 Va. 840, 36 S. E. 371. See the title FORCIBLE ENTRY AND DETAINER; HOMICIDE; RIOT. the castle, or a felony is being conmitted on it; while, on the other hand, the imperfect right of defense is permitted as well of the property as the person. Hence a man may lawfully defend his property in possession by any degree of force, short of taking of life, Prosecution for Homicide. As to necessary to make the defense effec- defense of persons or property as retual, unless it amounts to a riot, a forci- | lieving from criminal responsibility ble detainer, or some other like crime. upon a prosecution for homicide, see Yet he can not proceed therein beyond the title HOMICIDE. what necessity requires. 1 Bishop Cr. Law., §§ 860, 861." Hash v. Com., 83-As to self-defense as a defense to a Va. 23, 13 S. E. 398. prosecution for assault and battery, see the title ASSAULT AND BATTERY, vol. 1, p. 744. to himself, unless he kills his assailant, the killing is justifiable.' 1 Bishop Cr. Law (6th Ed.), § 865." Hash v. Com., 88 Va. 172, 13 S. E. 398. See the title HOMICIDE. Prosecution for Assault and Battery. Other Fersons Being Equally Defense of One's Person.-"The rule is commonly stated in the American cases thus: If the individual assaulted, 9. being himself without fault, reasonably apprehends death or great bodily harm "When two or more persons join in the commission of a crime, all the parties participating therein are guilty, and so is each of them, whether the crime is such that it may be committed by one person, or where it is Right to Oppose the Commission of of that class which requires the cona Felony. It is lawful for one to op- current acts of others, as in cases of pose another who is committing fel- fornication, adultery, conspiracy, riot, ony, even to the taking of his life, yet, lewd and lascivious cohabitation and if there is no obstacle to his arrest, many others. Crimes are joint and the shooting of him in the felonious several, and all participants therein, act, instead of having him arrested, is are severally liable to the full punisha felony. Hash v. Com., 88 Va. 172, 13 ment prescribed for the offense. S. E. 398. See the title HOMICIDE. Bish. Cr. Law, §§ 629, 630, 631. Reg. Defense of Property. “One, in de- v. King, 1 Salkeld. Hence it follows, fense of his property, must not commit that where parties are indicted and cona forcible detainer, a riot, or any like victed, either jointly, when all are tried crime. He must not kill the ag- together, or when indicted jointly and gressor; but, if the question comes to tried at different times, or indicted and this, he must find his redress in the tried separately, each one incurs the courts. If the wrongful act is proceed- full penalty; and the fact that one of . ing to a felony on the property, he may them has suffered that penalty, does then kill the doer to prevent the fel- not in any manner operate as a satisony, if there is no other way; other- faction of the guilt of another. One is wise this extreme measure is not law- not less guilty, because another is ful. And the defense may be such, equally guilty; each receives the same and such only, as necessity requires, punishment as if he alone had comof course, within the limit which for- mitted the offense." State v. Foster, 21 bids the taking of life. Therefore, a W. Va. 767; Williams v. Com., 85 Va. man commits a felonious homicide who 607, 8 S. E. 470. See the titles ACinflicts death in opposing an unlawful COMPLICES AND. ACCESSORIES, endeavor to carry away his property. vol. 1, p. 75; AUTREFOIS, ACQUIT There is here the right to resist, but AND CONVICT, vol. 2, p. 190. 1 Leigh 569; Com. v. Wyatt, 6 Rand. 694. A plea that when prisoner's associate Rand. 657. See also, Pitman v. Com., was tried for the same offense, prisoner | 2 Rob., 813, 814, 816; Com. v. Pegram, was a fugitive from justice, and that associate was acquitted, and that therefore prisoner was acquitted, is bad. Williams v. Com., 85 Va. 607, 8 S. E. See generally, the title STATUTES. Statute in Virginia.-"No new law shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offence or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect; save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings, and if any penalty, forfeiture, or punishment be mitigated by any provisions of the new law, such provisions may, with the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." Va. Code, 1849, p. 101, ch. 16, § 18; Ch. 2, § 6, Va. Code, 1904. This section is quoted in Lewis Arnold, 13 Gratt. 454, 462. See also, M'Gruder v. Lyons, 7 Gratt. 233; Yarborough v. Deshazo, 7 Gratt. 374, 377, where this section is cited. The object of this section is to reverse the rule in force before its passage, that, the repeal of a law, prescribing a punishment for an offense, without a proviso, that offenses committed before the operation of the new law, shall be punished under the old, excuses offenders under the repealed law. Scutt Statute Prescribing Punishment after May 1, 1828.-A statute passed in the session of assembly of 1827-28, prescribing a new punishment for an offense committed after May 1st, 1828, does not repeal former statutes, defining the offense, and prescribing other punishment for the same, as to such offense committed before May 1st, 1828. Com v. Pegram, 1 Leigh 569. See also, Allen v. Com., 2 Leigh 731; Pitman v. Com., 2 Rob. 807, 808. Depriving Court of Jurisdiction."Whenever a court is deprived of jurisdiction over any class of cases, by the repeal of a statute which gives the jurisdiction, and there is no provision made for the transfer of such cases to some other court which has or is given jurisdiction, and no reservation made for the trial of pending cases in such courts, all such cases fall with the repealed statute." But taking the jurisdiction away does not result in acquitting the accused. He may be reindicted and tried in a court having jurisdiction of such offenses. Dulin v. Com., 91 Va. 718, 20 S. E. 821. Statute in West Virginia.-The ninth section of chapter thirteen of the West Virginia Code of 1868 provides that "the repeal of a law, or its expiration, by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect or the law expired, save only that the proceedings had shall conform, as far as practicable, to the laws in force at the time such proceedings take place unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has Com., 2 Va. Cas. 54; Attoo v. Com., taken effect." The said Code of 1868 2 Va. Cas. 383; Com. v. Leftwich, 5 took effect on the first day of April, 1869. This provision is still retained scribed by law was death. On the 10th in the W. Va. Code, § 9, ch. 13, p. 132. | day of November, 1873, A. plead not State v. Abbott, 8 W. Va. 741; Gregg guilty to the indictment, and on that v. State, 3 W. Va. 705. See also, State day there was a jury selected, impanv. Gillilan, 51 W. Va. 278, 41 S. E. 131. eled and sworn according to law, to Time of Consenting. Such consent try the cause in said circuit court. The of an accused person may be given | jury found A. guilty of murder in the and entered of record in court as part of the proceedings in the cause before the jury is impaneled and before the verdict of the jury is received and recorded. It would be the better and the safer practice for the court to ask the defendant to elect before, or at the time the jury is impaneled, under which of the said laws he desires and elects to be tried, and have applied to his case. Still if the defendant did not then elect and consent to be tried under the new law, he should be allowed by the court, to consent at any time before the verdict of the jury is received and recorded by the court. State v. Abbott, 8 W. Va. 741. In Gregg v. State, 3 W. Va. 705, it is said: "And this election must be made before verdict rendered." first degree, and found that he be punished by confinement in the penitentiary; and the court, upon the verdict of the jury, rendered judgment that A. be confined in the penitentiary of the state for and during his life.. Held, that it was error in the court, in the trial of A., to apply the provisions of the Code of 1868, authorizing the mitigation of the punishment of murder in the first degree to confinement in the penitentiary during life without the consent of A. given in court and entered of record; and that without such consent of A., given in court and entered of record before the verdict of the jury was received and recorded by the court, the punishment prescribed by the said ninth section of chapter thirteen of the Code of 1868 could not be applied by the jury or court. And in the absence of such consent given by A. in court and entered of record as a part of the proceedings in the cause, the punishment prescribed by the law, in force at the time the killing took place, should have been applied to the case. State v. Abbott, 8 W. Va. 741. See also, the title HOMICIDE. Necessity for Consent. The nineteenth section of chapter one hundred and fifty-nine of the West Virginia Code of 1868 provides that "if a person indicted for murder be found guilty by the jury, thereof, they shall, in their verdict, find whether he is guilty of murder in the first or second degree. If they find him guilty of murder in the first degree, they may, in their discretion, further find that he be punished by confinement in the penitentiary. If such further finding be not added to their verdict, the accused shall be punished by confinement in the penitentiary during his life,” etc. On the 3d day of November, 1873, A. was indicted in the county of Kanawha by the grand jury, then attending the circuit court of said county, for the murder of G. on the 11th day of September, 1861, in said county, and the evidence shows that the killing was done at that time. At the time the killing was done the punishment as was pre-by the law as it existed subsequently Effect of Failure to Elect.-An offense punishable with death prior to April 1st, 1869 (the time when the new Code took effect) was committed prior thereto, but the accused was not indicted and tried until after that date. The accused did not elect to be tried or punished by the law that took effect April 1st, 1869, and which provides that the jury may find a verdict and attach the death penalty thereto, or fix the term of imprisonment in the penitentiary for life, until after verdict rendered; and it is held, that he ought to have elected to be tried and punished to April 1st, 1869, or the punishment mitted before then. Jones . Com., 86 See the title will be determined according to the Va. 661, 10 S. E. 1005. law as it existed at the time the offense COMMITMENTS AND PRELIMIwas committed; and this election must NARY EXAMINATION OF ACbe made before verdict rendered. And CUSED, vol. 3, p. 1. the jury having found a verdict of guilty, the court must sentence the accused according to the law existing at the time the offense was committed. Gregg v. State, 3 W. Va. 705. See also, State . Abbott, 8 W. Va. 741. And see the title HOMICIDE. Proceedings of Court at Trial. See generally, the titles CONSTITUTIONAL LAW, vol. 3, p. 172; STAT UTES. Every state may at any time change the forms of procedure in her criminal courts, and the laws in force in that respect at time of trial must prevail. Jones v. Com., 86 Va. 661, 10 S. E. 1005, citing Ewing v. Com., 5 Gratt. 701; Wilson v. Com., 86 Va. 666, 10 S. E. 1007. Remedial laws in force at the time when the indictment was found, must prevail, at the trial though, when the offense was committed, different modes of procedure were required. Wilson v. Com., 86 Va. 666, 10 S. E. 1007. By the law in force before May 1, 1888, when the Virginia Code of 1887 went into effect, the county court alone was empowered to issue the venire facias though the indictment was to be tried in the circuit court. By § 4020, Code, 1887, any court wherein a person accused of felony is to be tried, may cause a venire facias to issue for his trial, and that section is the law of the case, no matter when the offense was committed. Wilson v. Com., 86 Va. 666, 10 S. E. 1007. See the title JURY. Though at the time the felony time of the arrest of the prisoner, the charged was committed, and at the law in relation to called courts was unrepealed, yet if before the commitment the act abolishing called courts had gone into effect, it was proper for the committing justice to send the prisoner to be tried according to the new law. Ewing v. Com., 5 Gratt. 701. 2. Ex Post Facto Laws. See the title CONSTITUTIONAL LAW, vol. 3, p. 140. In a case where the law, as to matters of form and procedure, has been | changed between the period when the In the case of Perry v. Com., 3 Gratt. offense was committed and the period, 632, it was decided that the constituwhen the trial takes place, the proceed-tional provisions forbidding ex post ings of the court at the time of the trial facto laws relates to crimes and punshould conform to the law at that time in existence and not to the mode of proceeding prescribed by the law in force when the crime was committed. Jones v. Com., 86 Va. 661, 10 S. E. 1005. By the law in force before May 1, 1888, when the Virginia Code of 1887 went into effect, the accused, when indicted, was required to be sent before a justice for examination. By § 4003 of Code, 1887, that requirement is omitted, and accused, indicted since then, need not have such preliminary examination, though the offense was com ishment, and not to criminal proceedings. State v. Strauder, 8 W. Va. 686. See ante, "Effect of Repeal of Statutes Pending Prosecution," V, A, 1. See the PUNISHtitle SENTENCE AND MENT. 3. Equity Jurisdiction. Equity courts exercise no criminal jurisdiction. Thus, where a defendant in a suit in equity disobeys the process, order or decree of court, the regular and proper proceeding to punish such contempt should be entirely separate from the chancery suit and placed on the law docket. This is because a con tempt of court is in the nature of a criminal offense and the proceeding for its punishment is criminal in its character. State v. Irwin, 30 W. Va. 404, 4 S. E. 413. See the titles CONTEMPT, vol. 3, p. 236; EQUITY; INJUNCTIONS, JURISDICTION. power." Ex parte McNeeley, 36 W. Va. 84, 14 S. E. 438. Crimes Commenced in One State and Consummated in Another.-Laws punishing crimes committed partly in one state and partly in another, or com menced in one state and consummated A prosecution under the 13th section in another are not necessarily unconof the act of 1792, concerning incestu- stitutional. Virginia, as far back as ous marriages, was a criminal prosecu- 1840 enacted that if a blow be given tion; and therefore, it seems, the direc-in the state and death result in tion therein, that such prosecution another prosecution might be in Virshould be instituted in the high court ginia, in the county of the blow. But of chancery, was unconstitutional. At Virginia has never had legislation puntorney General v. Broaddus, 6 Munf. ishing as murder cases where the blow was without but death within the state. 116. 4. Territorial Limitation of Operation Ex parte McNeeley, 36 W. Va. 84, 14 of Criminal Laws. a. Doctrine in West Virginia. "It seems to be an axiom that a state's criminal law is of no force beyond its limits. Whart. Confl. Laws, § 18; Story Confl. Laws, § 621; 1 Bish. Crim. Law, § 110. Story, J., said in The Appollon, 9 Wheat. 362, that laws of a country 'must always be restricted in construction to places and persons upon whom the legislature have authority and jurisdiction.' It can be asserted that a crime committed in another country, and in violation of its laws, can not by legislative fiction or construction, be considered an offense in another country. This doctrine does not, however, apply to cases where a crime is perpetrated partly in one and partly in another country, provided, as Mr. Bishop says, 'what is done in the country which takes jurisdiction is a substantial act of wrong; not merely some incidental thing, innocent in itself alone." Ex parte McNeeley, 36 W. Va. 84, 14 S. E. 438. See also, the title CONFLICT OF LAWS, vol. 3, p. 120; JURISDICTION. S. E. 436. See the titles CONSTITU- "Chapter 144, § 6 (W. Va. Code), LAW, vol. 3, p. 140. the The latter clause of § 6, ch. 144, of the West Virginia Code (1891), providing that, "if a person be stricken or poisoned out of this state, and die by reason thereof within the state, the "The American states are distinct offender shall be as guilty, and may be and separate, as between themselves, prosecuted and punished, as if the moras to the administration of criminal tal stroke had been given, or poison law. Wherein a state assumes criminal administered, in the county in which jurisdiction over crimes done within the person so stricken or poisoned may another, it would seem to be without so die," is not unconstitutional or in |