State v. Wabash Paper Co.

Wiley, J. The question in this case, as to the sufficiency of the indictment, and the jurisdiction of the court in which the cause originated, is the same as that presented in the case of State v. Herring, ante, 157; and we now adhere to our holdings in that case. The record before us, however, presents other questions, not presented in that case, and we proceed to their consideration. It appears from the record that the appellee is a foreign corporation, and maintains at Wabash, in Wabash county, Indiana, a factory and machinery for the manufacture of paper. The indictment was returned in the Miami Circuit Court, and service upon the appellee was obtained by reading the summons to and in the presence of one Paul Herring, designated in the return as the agent of the appellee corporation; there being found no officer of said corporation higher in authority, upon whom process could be served. The appellee entered a special appearance, and moved the court to quash the summons and return thereon, which motion the court overruled; and the appellee excepted, and was given time to prepare and file its bill of exceptions. Within the time allowed by the court, the appellee did prepare and present to the court its bill of exceptions, which was duly signed and filed. Thereupon the appellee filed its affidavit in support of its motion for a change of venue from the county, and the venue was changed to the Cass Circuit Court. The indictment was in two counts, and in the latter court, the appellee moved to quash each count thereof, which motion the court overruled as to the first count, and sustained as to the second; to the latter ruling of which, the State reserved an exception. The prosecuting attorney then entered a nolle proseqvi as to the first count, and the State gave due notice of its appeal. [169] The appellee contends, first,-that it was not properly served with process, and that hence the record presents no questions for our consideration. With this contention we cannot agree, for the reason that the record as it comes to us, upon this point presents no question for our consideration. The appellee has not assigned cross-errors, and although its bill of exceptions, otherwise properly in the record, it is not entitled to have the question therein raised decided, for its failure to assign cross-errors. It is contended, secondly, by the appellee, that there was no final judgment entered in the court below, from which this appeal can be prosecuted. We do not think this position is tenable. The record shows that on April 20, 1896, the motion to quash each count of the indictment was passed upon by the court, it being overruled as to the first, and sustained as to the second; and that on April 30, 1896, the prosecuting attorney entered a nolle prosequi as to the first count. On the same day notice was served on the appellee and the clerk of the Oass Circuit Court of the appeal. Upon the record as it thus stands, and as we have set it out, the appellee contends that there was no final judgment from which the State could appeal, but the record further shows that on the 28th day of May, 1896, the following order was made and entered: “Come again the parties, and the court now sustains the defendant’s motion to quash the second count of the indictment herein, and to which ruling of the court the plaintiff excepts. It is further ordered and adjudged and decreed by the court, that the defendant be discharged as to the second count of the indictment herein. And the state of Indiana now prays an appeal to the Supreme Court of the state of Indiana, which is granted, and these proceedings having been had on the 30th day of April, [170] 1896, and having been omitted to be entered of record on said day, is entered of record now for then.” This nunc pro tunc entry effectively disposes of appellee’s contention that no final judgment was entered from which this appeal could be prosecutecl. The record shows that a final judgment was entered as to the ruling on the second count of the indictment by an order discharging the appellee, which is in all respects sufficient, and in fact in our judgment, all that could have been properly entered. There could be no judgment for costs, because the State is not liable for costs, and there could be no judgment against the appellee for costs, because the finding and judgment were in its favor. This disposes of all the questions raised by appellee and presented, by the record. In addition, however, to what was said in the case of State v. Herring, supra, we desire to make some additional observations. Counsel for the State have cited us to some authorities which greatly strengthen the doctrine announced therein. In Iowa there is a statute which in every respect is like section 1649, Burns’ R. S. 1894, and which reads as follows: “When a public offense is -committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the consummation of the offense occur in two or more counties, jurisdiction is in either county.” In the case of the State v. Smith, 82 Ia. 423, 48 N. W. 727, the supreme court of Iowa held, under section 4519, which provides that “when a public offense is committed in part in one county and part within another, or when the acts or effects constituting or requisite to the consummation of the offense occur in two or more counties, jurisdiction is in either county,” that where the acts of defilement were committed in one county, and the injury resulted to resi [171] dents of another, the prosecution was properly brought in the latter. In the case from which we have just quoted, upon an examination, we find the facts to be in all essential respects identical to those of the case now before us. In that case the indictment charged the defendant with having deposited filth, offal, etc., in linn creek, in Marshall county, Iowa, and suffered them to flow down the Iowa river, through Taina county, and causing an injury in the latter county, in which county the defendant was indicted. After quoting the above statute, the supreme court of Iowa says: “This provision of the statute appears to us to be decisive of the question of jurisdiction. It is plain that just such offenses as this are contemplated and provided for by this act.” Garrett on Nuisances, p. 342, construing a similar English statute takes a like view, and says: “And it may be further noticed, that under 7 Geo. IV, c. 64, s. 12, where a misdemeanor is begun in one county and completed in another, the venue may be laid in either county, an enactment which it is submitted would apply to many cases of nuisance, such as pollution of air and running water.” The supreme court of Arkansas in the case of the State v. Chapin, 17 Ark. 561, states the rule as follows: “It is not necessary in all cases, that a man should be actually present in this state to make him amenable to our laws for a crime committed here. If the crime is the immediate result of his act, he may be made to answer for it in our courts, though actually absent from the state at the time he does the act, because he is constructively present, or present in contemplation of law. For example, if a man standing beyond our boundary line, in Texas, were, by firing a gun, or propelling any other implement of death, to kill a person.in Arkansas, he would be guilty of murder [172] here, and answerable to our laws, because the crime is regarded as being committed where the shot, or other implement propelled, takes effect.” We think what we have here said, and what was said , in the State v. Herring, supra, effectively disposes of all questions presented, adversely to the appellee', and, upon the authority of that case and what we have here said, the judgment of the Oass Circuit Court is reversed, and it is directed to overrule the appellee’s motion to quash the second count of the indictment.