State v. Bunker

The opinion of the court was delivered by Horton, C. J.:

James M. Bunker, aged thirty-seven, seduced Cecilia Monroe, aged fifteen, in Sumner county, in this state, in 1883. At the time, they were engaged to be mar *740 ried; but soon after, Bunker went to North Carolina, where he remained six months. While he was absent, Cecilia was delivered of a child. Upon Bunker’s return to the state, in the spring of 1884, the father of Cecilia brought an action against Bunker for the seduction of his daughter. Bunker married Cecilia, at Wellington, on May 27, 1884, and the civil proceedings brought against him were dismissed. All the parties lived near Milan, in Sumner county. After the marriage, Bunker and his wife lived about six months at the house of Mr. Monroe, the father of his wife. He had a farm in the neighborhood. Late in the fall of 1884, Bunker and his wife ceased to live together, Bunker remaining at his farm until the spring of 1885. Mrs. Bunker continued to live at her father’s house. In the spring of 1885, Bunker went to Lane county, in this state, to reside. On the 23d day of September, 1885, he obtained a decree of divorce from Cecilia his wife, in the district court of Ness county. In the action, no personal service was made upon the wife. On July 15, 1885, Bunker made an affidavit before Fred. H. Kurtz, a notary public of Ness county, that he was unable to obtain personal service upon his wife, as she was not a resident of the state; and that he had made diligent search to ascertain her whereabouts, but had not been able to find her. On the date of the affidavit, he filed the same in the district court of Ness county, with his petition for the divorce. At the date of the affidavit, his wife was living in Sumner county, where he had left her. On May 13,1887, an information was filed by the county attorney of Ness county against Bunker, charging him with perjury, in willfully, falsely and corruptly making oath to the affidavit of July 15, 1885. (Comp. Laws of 1885, ch. 31, § 148.)

Fred. H. Kurtz, before whom Bunker made the affidavit, was commissioned a notary for Ness county on April 9,1885. He resided in Lane county, and the affidavit was subscribed and sworn to in that county. At that time Lane county, being unorganized, was attached to the.county of Ness for judicial purposes. (Laws of 1881, ch. 99, § 5.) By the provisions *741 of section 134, ch. 24, Comp. Laws of 1885, when an unorganized county is attached to an organized county for judicial purposes, it constitutes and forms one of the municipal townships thereof, and is subject to the same regulations and liabilities as other townships of the county. Its electors are deemed legal electors of the county to which it is attached. The officers of the county to which it is attached have the same powers and perform the same duties in reference to the attached county as they have over the municipal townships of their own county.

The trial of this case was commenced in Ness county, on November 7, 1887. At that time Lane county had been properly organized, the date of its organization being July 15, 1886, one year after the making of the affidavit. The jury returned a verdict of guilty against Bunker as charged in the information, and he was sentenced to be imprisoned in the penitentiary of the state at hard labor for the term of three years. Judgment was also rendered against him for the costs. From the judgment he appeals.

Crime-trial in county where committed. Bunker should have been prosecuted in Lane county, where his offense was committed, not in Ness county. By the common law, the trial of all crimes was required to be in the county where they were committed; it . # J , J • originally carried its jealousy farther, and required that the jury itself should come from the vicinage where the crime was alleged to have been committed. The constitution of the state ordains that the accused shall be entitled to “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The design of this constitutional provision seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witnesses who give evidence before them. The word “district,” like the word “county,” is here used in a restrictive sense, and is intended *742 to designate the precise portion of territory or division of the state over which a court at any particular sitting may exercise power in criminal matters. (Olive v. The State, 11 Neb. 1 .) There were no proceedings pending against Bunker in Ness county at the time of the organization of Lane county, on July 15, 1886. After that date, Lane county was no part or portion of Ness county, as a township or otherwise. By the general provisions relating to counties, there must be a district court in each organized county. (In re Wells, 36 Kas. 341 .) Bishop on Criminal Procedure says :

“ Where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the state; the trial in the new county.” (Wol. 1, §49.)

In Arkansas, it has been held that—

“ If a new county is formed of territory formerly included in an old county, an indictment for an offense antecedently committed within the territory embraced in the new county may be maintained in the new, under the usual allegation setting out the offense as committed in the new.” (McElroy v. The State, 13 Ark. 708 .)

The same doctrine was declared in a New Jersey case, except that while it was held that the trial should be in the new county, it was also held that the indictment should not allege that the offense was committed in the new county, for the reason stated, that “it is seen that at the time mentioned there was no such place as that at which the offense is alleged to have been committed.” (The State v. Jones, 3 Halst. 307.)

In Georgia, also, it has been held that the offender should be tried in the new county, and that the offense might be, or should be, charged as having been perpetrated in the old county. (Jordan v. The State, 22 Ga. 545 -555.)

It is claimed, however, that the filing of the affidavit in the district court of Ness county was “ an act constituting, or requisite to the consummation of the offense;” therefore that the jurisdiction of the offense would be in either Lane or Ness county, as having been committed partly in one and partly in *743 another county. (Crim. Code, §§ 20, 23.) Affidavits in judicial proceedings, though touching matters incident or collateral, may be instruments of peijury. (Comp. Laws of 1885, ch. 31, § 148.) Upon the trial of a party on an information for perjury, alleged to have been committed in swearing to an affidavit, it is proper to show that the affidavit was made to be used, or that it was actually used, in a judicial proceeding; and therefore if this case had been tried in a district court having jurisdiction thereof, it would have been competent and perhaps necessary to have shown that the affidavit was filed and used in the divorce case of Bunker «.Bunker, pending in Ness county; but this evidence would have been competent only for the purpose of showing that the facts sworn to were material. To convict a party of perjury, it must be shown that there was an oath authorized by law, an issue or case to which facts were material, and a false statement regarding such facts upon such issue or in such cause. (The People v. Fox, 25 Mich. 492 .) Where the oath to an affidavit is required or authorized by the statute, this is made to appear when the purpose for which the affidavit was made is shown. The materiality of an affidavit is sometimes directly averred in an information or indictment; it must, of course, in some way appear.

We think the offense was fully completed in the territory now embraced in Lane county, if peijury was committed by Bunker; and therefore the filing of the affidavit in Ness county did not confer upon the district court of that county jurisdiction of the accused.

The judgment of the district court will be reversed, and Bunker will be returned to the county jail of Lane county, by the warden of the penitentiary, for such further proceedings against him as may be proper.

All the Justices concurring.