valid. Ex parte McNeeley, 36 W. Va. are given by the court. I do not see 84, 14 S. E. 436. b. Doctrine in Virginia. how that decision was reached, except on the untenable ground of the alleged rule of the old common law that, where The states in the administration of the blow is in one county, death in criminal law are sovereign, and in their another, neither can try the case; by respective jurisdiction and the laws parity of reasoning, where blow is in which regulate their internal police, one state, death in another, the state they are as foreign to each other as of the blow can not prosecute." Com. each state is to foreign governments. v. Linton, 2 Va. Cas. 205. Section Except in those states where statutory 3890a, Va. Code, 1904, provides: "If a provision is made for the punishment mortal wound or other violence or inof crimes committed in another juris-jury be inflicted by a person within this diction, the common-law rule prevails which furnishes no warrant for the conviction in a state court of a person charged with the commission of an offense in another state. It was the rule at common law that every prosecution for a criminal case must be in the county where the crime was committed with the exception that where property is stolen in one county and the thief has been found with the stolen property in his possession, in another county, he may be tried in either; but this rule of the common law was never extended further than the counties. Strouther v. Com., 92 Va. 789, 22 S. E. 852; Com. v. Linton, 2 Va. Cas. 205. See also, Com. v. Gaines, 2 Va. Cas. 172. See the title LARCENY. It seems to be the rule in Virginia that jurisdiction of extraterritorial offenses may be conferred upon the courts by statutory provisions to that effect. "The British parliament and the Virginia legislature, have in various instances prescribed punishment for extraterritorial offenses." Com. v. Gaines, 2 Va. Cas. 172; Strouther v. Com., 92 Va. 789, 22 S. E. 852. state upon one outside of the same or upon one in this state who afterwards dies from the effect thereof out of the state the offender shall be amenable to prosecution and punishment for the offense in the courts of the county or corporation in which he was at the time of the commission thereof as if the same had been committed in such county ог corporation. Ex parte McNeeley, 36 W. Va. 84, 14 S. E. 437. The object of this statute was to overrule the decision in Com. v. Linton, 2 Va. Cas. 205. It was held in Strouther v. Com., 92 Va. 789, that one who steals property at a place beyond the jurisdiction of this state and brings the same into the state, can not be lawfully convicted of larceny in this state. From an early day it has been held, that where property is stolen in one county, and the thief has been found with the stolen property in his possession in another county, he may be tried in either; but this rule of the common law was never extended farther than to counties. See also, Brown v. Com., 2 Leigh 769. Section 3890, Va. Code, 1887, was amended by the acts of 1895, 1896, p. 576, so that a thief bringing into this state goods stolen in another state shall be liable to prosecution and punishment for his offense in any county or corporation in which he may be found as if the same had been wholly committed there. Section 3890, Va. Code, 1904. See the titles LARCENY; Crimes Commenced in One State and Consummated in Another.-In Ex parte McNeeley, 36 W. Va. 84, 14 S. E. 437, it is said: "The case of Linton, 2 Va. Cas. 205, is said in Hunter v. State, 40 N. J. Law 514, to be the only case holding that where a blow is given in one state, followed by death in another, there can be no prosecution JURISDICTION; in the state of the blow. No reasons VENUE. C. MERGER IN CRIMINAL CASES. Offenses against the Commonwealth. TIONS. See also, the specific crimi-By the first clause of the seventh nal titles. section of the act, 1 Rev. Code, 1792, ch. 136, all treasons, misprisons, etc., and other offenses against the commonwealth, except piracies and felonies on the high seas, though committed beyond the territorial limits of the commonwealth, are indictable and punishable in the general court; the words "in any place out of the jurisdiction of the courts of common law of this commonwealth," meaning a place out of the commonwealth. Com. v. Gaines, 2 Va. Cas. 172. This statute was repealed in 1819. See Strouther v. Com., 92 Va. 389, 22 S. E. 852. Offenses by a Citizen against a Citizen. The second clause of the seventh section of the act, 1 Rev. Code, 1792, ch. 136, by the words, "all felonies committed by citizen against citizen in any such place," refers to such place as is spoken of in the first clause, and therefore means felonies committed by citizen against citizen, in any place out of the commonwealth, except on the high seas. Com. v. Gaines, 2 Va. Cas. 172. This statute was repealed in 1819. See Strouther v. Com., 92 Va. 789, 22 S. E. 852. Therefore, if a citizen of Virginia steals a horse from another citizen in the District of Columbia, he may, under the said law, be indicted, tried, and sentenced in the general court. Com. v. Gaines, 2 Va. Cas. 172. See the title CONFLICT OF LAWS, vol. 3, p. 120. This statute was repealed in 1819. See Strouther v. Com., 92 Va. 789, 22 S. E. 852. 5. Course of Proceedings. The course of proceeding in criminal cases pointed out by the statute may be more or less convenient; but it is the only legal mode; and courts have no power to carve out another. Nemo v. Com., 2 Gratt. 561. B. LIMITATION. Rules of the Common Law.-At common law a party indicted for felony could not be convicted on that indictThe two ment of a misdemeanor. offenses were of different grades, required different modes of trial, and were followed by different judgments. "This common-law rule continued to prevail in Virginia even after the distinctive features between these two grades of offense, which had given rise to the rule, had been abolished or changed, and the reason of the rule had entirely ceased. The effect of this rule was that if the felony charged in the indictment was not fully proved on the trial it was necessary to acquit and discharge the accused, though there might have been the fullest proof before the jury that he was guilty of a highly criminal act, which constituted part of the offense charged against him in the indictment. To be sure he might be indicted again for the misdemeanor. But then the risk, delay, trouble and expense of this course of proceeding constituted a serious objection to it. Hardy v. Com., 17 Gratt. 592. See the title AUTREFOIS, ACQUIT AND CONVICT, vol. 2, p. 181. "It was a rule of the common law, that while more than one offense, even though of the same grade, could not be included in the same count of an indictment, yet as it was necessary to set out all the facts constituting an offense in an indictment for it, and as those facts often in themselves are separate offenses, a party might be convicted of any offense substantially charged in the indictment, provided it was of the same grade with the principal or total offense charged. So that if a party were indicted for one felony, as for example murder, he might be found not guilty of murder, but guilty of manslaughter, See the title LIMITATION OF AC- which is embraced in the charge. The unless it be embraced in the mode in which the principal offense is charged. Hardy v. Com., 17 Gratt. 591. "A person can not be convicted of any offense, even though it be of a misdemeanor, under an indictment for felony, unless the offense, or the acts constituting it, be charged in the indictment." Canada v. Com., 22 Gratt. 899. only reason why he could not be convicted of a misdemeanor on such an indictment was the distinction, before referred to, between the two grades of offense." Hardy v. Com., 17 Gratt. 592. Parts of the Felony Charged. "If a person indicted of felony be by the jury acquitted of part and convicted of part of the offense charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor." Va. Code, 1094, 4040. Reynolds v. Com., 94 Va. 816, 27 S. E. 427; Hardy v. Com., 17 Gratt. 592; Scott v. Com., 14 Gratt. | 687; Canada v. Com., 22 Gratt. 899; Montgomery v. Com., 98 Va. 840, 36 S. E. 371; W. Va. Code, ch. 152, § 18; State v. Howes, 26 W. Va. 110, citing Canada v. Com., 22 Gratt. 905; State v. McClung, 35 W. Va. 280, 13 S. E. 654. See the titles INDICTMENTS, INFORMATIONS AND PRESENTMENTS; SENTENCE AND PUN- disfigure, disable, and kill, the defendant ISHMENT; VERDICT. Whenever on an indictment for felony it is proved that the accused committed some act therein stated as part of the felony therein charged, which act is in itself a criminal offense, but that he did not commit the felony nor intend to commit it, he may be convicted of such act and sentenced accordingly. Hardy v. Com., 17 Gratt. 592. To ascertain whether a party can be convicted of a lesser offense under § 4040, Va. Code, 1904, the first question must always be whether it is substantially charged. If the principal felony charged is one which necessarily and in all cases, includes the lesser offense, then every indictment for the principal felony substantially charges the lesser offense. If the principal felony is such as does not necessarily, and in all cases, include the lesser offense, then it would seem that an indictment for the principal felony would not substantially charge the lesser offense An indictment for robbery charged that the prisoners "did make an assault" upon G. and one gold watch, etc., from the person and against the will of G., etc., "feloniously and violently did steal," etc. The jury acquitted the prisoners of the felony charged, but found them guilty of "assault and battery." On motion in arrest of judgment, it was held, that the finding is valid under ch. 208, § 27, of the Code. Hardy v. Com., 17 Gratt. 592. On an indictment for malicious cutting and wounding with intent to maim, may be convicted of unlawful cutting and wounding with like intent, or of assault and battery. Montgomery v. Com., 98 Va. 840, 36 S. E. 371; Canada v. Com., 22 Gratt. 899. Attempts to Commit the Felony Charged.-"Section 4044 of the Code expressly enacts that on an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such felony." Glover v. Com., 86 Va. 384, 10 S. E. 420; Hardy v. Com., 17 Gratt. 592; W. Va. Code, ch. 159, § 22. State v. Meadows, 18 W. Va. 658. Refusal to instruct jury that if they believed from the evidence that prisoner intended to commit a felony, but before committing it, he voluntarily abandoned it, they were to find him not guilty, and instructing them that, on an indictment for felony, prisoner might be found guilty of an attempt to commit a felony; held, not error. Va. Cod 1887, § 4044. Glover v. Com., 86 Va. 382, 10 S. E. 420. It is not error for the court to instruct such case the accused can not afterthe jury on an indictment for felony, that under § 22, ch. 159, of the West Virginia Code they can acquit of the felony and find the prisoner guilty of the attempt to commit such felony. State v. Meadows, 18 W. Va. 658. Whenever on an indictment for felony it is proved that the accused intended to commit a felony and did some act towards its commission, but without committing it, it is the plain duty of the jury to convict the accused of an attempt to commit such felony. Now an attempt to commit a felony is by statute made a felony or misdemeanor, according to the nature of the felony attempted to be committed. Hardy v. Com., 17 Gratt. 592. See the title ATTEMPTS AND SOLICITATION TO COMMIT CRIME, vol. 2, p. 135; SENTENCE AND PUNISHMENT. Conviction of Higher Barring Prosecution for Lower.-"When one crime necessarily includes another and lower crime, if the accused be convicted of the higher offense, he can afterwards never be prosecuted for the lower offense." Moundsville v. Fountain, 27 W. Va. 182. wards be prosecuted for the higher offense; for, if he were so prosecuted, he would be again put in jeopardy for the lower crime which is a part of the higher crime. Moundsville v. Fountain, 27 W. Va. 182; State v. Cross, 44 W. Va. 315, 29 S. E. 527. See Canada Com., 22 Gratt. 899; Stuart v. Com., 28 Gratt. 950; Livingston v. Com., 14 Gratt. 592-606; Com. v. Lambert, 9 Leigh 603-606; Montgomery v. Com., 98 Va. 840, 36 S. E. 371; Forbes v. Com., 90 Va. 550, 19 S. E. 164. See also, Benton v. Com., 91 Va. 790, 21 S. E. 495; Ball v. Com., 8 Leigh 726. "If, for instance, one be indicted for manslaughter, he can not afterwards be indicted for the murder; for if he was so indicted, he would be twice put in jeopardy for the manslaughter, which is necessarily included in a murder, in violation of the constitution. (People v. Hancheller, 48 Cal. 331.) So if one be indicted for an attempt to commit a rape, he can not afterwards be indicted for the rape, as the rape necessarily includes the attempt to commit rape, and if indicted for it he would be twice put in jeopardy for the attempt to rape. (State v. Sheppard, 7 Conn. So if the first indictment be for If a party be charged with an assault 54.) and convicted thereof, he can not after-burning a dwelling house uninhabited, wards be punished for the battery committed at the same time. "The battery includes the assault, and for the assault the defendant has received the legal punishment. He can not now be punished for the battery, because it can not be separated from the assault. The one is a necessary part of the other, and if he be now punished for the battery he will thereby be twice punished for the assault; that is, twice punished for the same offense, which can not be done." Hardy v. Com., 17 Gratt. 592. Conviction of Lesser Barring Prosecution for Higher. Where one crime necessarily includes another and lower crime, if the accused be convicted of the lower crime, the decided weight of authority as well as reason is, that in it will bar an indictment for the same burning of the dwelling house, which charges that it was inhabited. (Com. v. Squire, 1 Metc. 258.) So an indictment for an assault and battery will bar a subsequent indictment for a riot, in which such assault and battery was committed; for otherwise the accused might be twice punished for the battery, which was a part of the riot, and it may be the greater part of it. (Com. v. Kinney, 2 Va. Cas. 139.) So if the riot occurred at a religious meeting, the rioters could not be indicted for both the riot and for disturbing a religious meeting, though they could be indicted for either. [2 Harring (Del.) 543.] So it is decided in State v. Cooper, 1 Green, N. J. 362, that a de from different and distinct impulses, can not be regarded as parts of one and the same act and punished as such, but can only be prosecuted distributively and punished as separate offenses. State v. Porter, 25 W. Va. 685, citing 1 Wheat Crim. Law 27. Walker's Case, 1 Leigh 574. See also, Smith v. Com., 7 Gratt. 593; Com. v. Kinney, 2 Va. Cas. 140; Vaughan v. Com., 2 Va. Cas. 273. fendant can not be indicted and punished for two distinct felonies growing out of the same identical act, and when one is a necessary ingredient of the other, and the state has selected and prosecutes one to conviction. So it was decided in State v. Smith, 43 Vt. 324, when an offense is a necessary element in and constitutes an essential part of another offense, and both are in fact one transaction, a conviction or acquittal of one is a bar to the prosecution for the other." Moundsville v. Fountain, 27 W. Va. 182. See ante, "Defini-stitutes two distinct offenses. State v. tions and Nature," I, A. A conviction against one under an indictment for an assault and battery on H. M. may be pleaded by him in bar to an indictment against the same defendant and two others, for a riot and beating the said H. M., the assault and battery in each case being identically the same. Com. v. Kinney, 2 Va. Cas. 137. In this case the court was of opinion, that as the inferior offense of an assault and battery was included in the higher offense of a riot, and constituted a part of it, and the commonwealth had already elected to indict, and had actually convicted the defendant of that inferior offense, it was barred from prosecuting the defendant for the higher offense, for if this proceeding were allowed, then the defendant having been already fined and imprisoned for the battery, might be again placed in peril of another fine and imprisonment for a riot, of which the battery of which he had been before convicted was a part, and perhaps the chief part. Acquittal of Lesser Offences Bars Prosecution for Greater.-An acquittal of manslaughter is a bar to a prosecution for murder, and an acquittal of murder is a bar to a prosecution for petit treason. Com. v. Lambert, 9 Leigh 603-606. To obtain by false pretenses two ten-dollar notes at different times and places and from different persons con Porter, 25 W. Va. 685. A conviction for advising, etc., one slave to abscond, is not a bar to a prosecution for advising, etc., another slave to abscond; though the advising, etc., was to both at one time, and by the same words and acts. Smith v. Com., 7 Gratt. 593. The felony of one is not a bar to, or a suspension of, a civil remedy for the same act. Per Greene, J. Allison v. Farmers' Bank, 6 Rand. 204. See quære in Cook v. Darby, 4 Munf. 444. E. WHEN PROSECUTION CON- Where a criminal prosecution is instituted upon a presentment, the presentment must be regarded as the primal accusation of the defendant, as the commencement and institution of the prosecution. Whether the process upon the presentment be a summons to answer or be a rule and summons Distinct Offenses Are Distributively to show cause why an information Prosecuted. Two offenses, being sepa- should not be filed upon it the subrate and unconnected, and resulting sequent proceedings by way of infor |