Tyler v. People , 8 Mich. 320 ( 1860 )

Manning J.:

The errors assigned in this case present the following questions for the decision of the court: First, Is the plea of a former conviction a bar to the j>rosecution; Second, Had the Circuit Court cognizance of the offense charged in the first count of the indictment: Third, Did the court err in refusing to charge the jury' that, if Jones died in the county of St. Clair, of a wound inflicted by the prisoner on that.part of the St. Clair river not within the limits of the state, (as there was no evidence to support the second count in the indictment) they should acquit the prisoner. And Fourth, In refusing to charge that, if the jury should find the prisoner was a deputy of the Marshal of the United States, and was in the act of serving process, &c., as stated in the request to charge set out in the bill of exceptions, they should acquit the prisoner.

The first question was decided by this court when the case was before us on questions reseiwed: — People v. Tyler, 7 Mich. 161. We then held, and we have seen no reason since to change our opinion, that the Circuit Court of the United States for the district of Michigan, in which the prisoner was tried and convicted, had no jurisdiction of the offense under the act of Congress entitled “An Act in addition to An Act more effectually to provide for the Punishment of Crimes against the United States, and for other purposes,” approved March 3, 185'T, and that the prisoner’s plea of a trial and conviction in that court was therefore no bar to the present indictment.

The next question depends on the construction to be given to §5944 of Compiled Laws, which is in the following words: “ If any such mortal wound shall be given, or other violence or injury shall be inflicted, or poison administered, on the high seas, or on any other navigable waters, or on land, either within or without the limits of this state, by means whereof death shall ensue in any county thereof, such offense may be prosecuted and punished in the county where such death may happen.”

It is insisted by the prisoner’s counsel,7) that the words, navigable waters, as they are here used in connection with the high seas, should be understood as meaning such rivers or waters only as are navigable^from the sea, and in which the tide ebbs and flows; or, in other words, tide waters. We do not feel warranted in giving to them so restricted a meaning. They are used in a statute relating to offenses against the state, and their punishment. They are not used in connection with admiralty law, or courts of admiralty; and as the state has nothing to do with such laws or courts, and there are no waters of the description referred to within her limits, or within several hundred miles of the state, it is quite evident the Legislature must have used the words in a much broader sense, and as including waters in which there is no ebb and flow of the tide. We doubt whether they were ever used in the laws of Michigan in the restricted sense imputed to them, as there is nothing within the limits of the state, or contiguous thereto, to which they could in that sense be made to apply. But there are large lakes and rivers lying partly within her limits, and partly within a foreign state, to which we think they do apply. They are used in the section under consideration (on which the first count of the indictment was framed) in the sense, we think, in which the same words are used in the ordinance of ’87, which provides that the navigable waters leading into the Mississippi and St. Lawrence shall he public highways. The Massachusetts statute from which it is said our statute was taken, does not contain these words. We are therefore of opinion the Circuit Court for the county of St. Clair had cognizance of the offense charged in the first count of the indictment.

The construction we have given to the statute disposes of the third question. Whether there was evidence or not to support the second count, which is in the usual form, it would have been error in the court to have charged as requested.

Something was said on the argument as to the power of the Legislature to enact such a law; but as it was not made a point by the prisoner’s counsel, we should not now notice it were it not that our brother Campbell, differing with a majority of the court, holds the statute to be unconstitutional. We think it clearly within the scope of the legislative power. We know of no constitutional inhibition; no part of the Constitution with which it comes in conflict: — In Sears v. Cottrell, 5 Mich. 251, we stated in substance, if not in words, that to warrant us in declaring a statute unconstitutional, we should bo able to lay our finger on the part of the Constitution violated, and that the infraction should be clear, and free from a reasonable doubt. We still adhere to the views then expressed. The ■ expediency or policy of the statute has nothing to do with its constitutionality; and if it was a legitimate subject of inquiry and] consideration in determining the constitutional question, we should not hesitate in the present instance to declare in its favor; for the crime, though commenced in Canada, was consummated in Michigan.

The shooting itself, and the wound which was its immediate consequence, 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 followed Jones into Michigan, where they continued to operate until the crime was consummated in his death. If such a killing did not by the common law constitute murder in Michigan, we think it the clear intent of the statute to make it such, to the same extent as if the wounding and the death had both occurred in the state.

The only remaining question is, whether the court erred in refusing to charge that, if the jury “believed from the evidence introduced, tending to show it, that at the time of the shooting of the said Henry Jones, as charged in- the indictment, the defendant was a deputy of the Marshal of the United States for the district of Michigan, and had in his possession and exhibited at said time, a writ of attachment of said brig Concord, duly issued under the seal of the District Court of the United States for the district of Michigan, sitting in Admiralty, and that said defendant at said time was avowedly attempting to execute said writ, as such deputy Marshal, by taking possession of said brig, unmoored and in motion, or riding at anchor in that part of the river St. Clair lying on the Canadian side of the boundary line between the United States and the province of Canada; that said brig was an American vessel, and that said Henry Jones was the master of said brig, and was at said time forcibly and with deadly weapons resisting and intending to resist said defendant, and said writ, at all hazards; that then said shooting and killing was excusable homicide, and the prisoner must be acquitted.”

The court was right in refusing to charge as requested, for two reasons:

First: Because the request assumed what does not -appear from the bill of exceptions, viz: that the prisoner was a deputy of the Marshal; that he at the time exhibited the writ, and was in the act of executing it; and that Jones forcibly, and with deadly weapons, resisted the execution of the writ. There is no evidence in the bill of exceptions tending to prove these facts, nor any statement-that there was evidence before the jury tending to prove them. Without the evidence itself, or a statement in the bill of exceptions that there was such evidence, we can not determine the propriety or impropriety of the request; or whether the charge, if made, would or would not have anything to do with the merits of the case, or be an abstract principle of law, wholly foreign.

Second: Because the writ did not authorize the seizure of the vessel in Canadian waters. The process of a court is if no force or validity beyond its territorial jurisdiction. Validity may be given to it by statute, or a law of the state, coextensive with the state, but no extra territorial validity whatever can be given to it without the consent of the sovereignty of such territory; and we know of no treaty between the United States and Great Britain authorizing the service of the writ in Canada.

The judgment must be affirmed.

Martin Ch. J., and Christiancy J. concurred.