The mountain Democrat. [volume] (Placerville, El Dorado County, Calif.) 1863-1943, 1865-02-11
supreme court pecl.lon.

below the decision of the Supreme Court
in the case of Preston Hodges. 1t will
be remembered that Hodges was indicted
as an accessory of Poole in the robbery
Of the Pioneer Stages and murder of Sta.
Piles, convicted in our District Court Of
murder in the second degree, and sen.
fenced by Judge Brockway to twenty
years imprisonment at hard labor. The
attorneys of Hodges, at the trial here,
took the proper view of the case but his
Honor couldn't see it. y The decision will
have the effect of sending Jarboe ct al. to
Santa Clara County for trial n motion for
which was also overruled by Judge
Brockway:
The People VS.. PRESTON HoDGEs.-
Thomas B. Pool was indicted, Jointly with
three others. by the Grand Jury of the
county of Ell Dorado, for the murder of
Joseph N. Staples, which murder was al
legged to have been committed in said
county, July /, 1864 and it was further
charged in the Indictment that Hodges,
the appellant, within said county, "in-
cited, counseled, hired aud commanded"
the said Pool and others to commit the
said murder.
The appellant, on a separated trial, was
found guilty by the jury Of murder in the
second degree, and he was therenpon
sentenced by thes CpEt. IN oNaGncmentip
the State Prison for the period Of twenty
years.
There is only one question in the case
necessary to be considered.
1t appeared, fNom all the testimony in.
PRODUCED at the trial, that the acts where
with Hodges stood charged were perform
cd by him in the county OF Santa Clara,
over two hundred miles distant from the
scene Of the murder and on that ground
it is now insisted for the appellant that
the District Court for the Eleventh Judi.
cal District, in which the trial and con.
viction were had, had no jurisdiction Of
the offence charged against him.
We consider the objection to be well
taken. Section 90 Of the Criminal Prac
tee Act Is as follows: "In the case of
an accessory before or after the fact in
the commission OF Il public olfrnse, the
jurisdiction shall be in that county where
the oif"nSe Of the accessory was commit
ted, notwithstanding the principal olfeaSe
was committed in another county" BY
Section 255 all persons connected in the
commission of felony, whether they di-
rectly commit the act constituting the
ofenSe, or aid and assist in its commits.
sion, though not present, are to be indict-
ed, tried, and punished, as principals. -
To that eXten. "all distinction between
an accessory before the fact and princi-
pal. and between principals in the first
and second degree is expressly abolish
ed by the section.
There is no conflict between these sec
TONS. The latter (Scction 2j5) requires
that an accessory should be indicted, tried
and punished in same marrer as prinr
pals; and Section % fixes the place at or
IN which those evcntS are to uan>pirt.
Though the common law distinction
between principal and accessory i IN the
main obliteratcd, yet it i retained C,r the
purpose of venue. Sections IL and y Of
the At entitled Grimes and punish
mrnts," define the term accessory. -
Section 2jj Of the Criminal Practice Act
relates to the frame of the indictment
against an accessory, the iucthod Of trial,
and the measure Of punishment; and
Section SO determines the forum having
jurisdiction of the otienSe. Ii is suggest
cd, however, on bchllf OF the People, that
the evidence establishes tiiat Hodges was
Il principal in the second degree and not
an accessory. This position is not tcna
Die, for there was no evidence tending to
prove that Hodges at the time when the
murder was committed was Sat Such con-
venicrt distance as to be able to come 10
the immediate assistance Of his associates
if required, or to watch to prevent sur
prise, or the like" (Arch. Grim. Prac.
H. 1t is further insisted that the OBJ.
jeclion to the jurisdiction on the part Of
the appellant comes too late, no motion
in arrest on that ground having hcen
made in the Court below. W hen it be.
came manifest, in the progress Of the
trial, that the Court had no jurisdiction
of the offtnsc. the jury should have been
discharged (Urim. Prac. Act, Sec. 1922,
and the Court on its own motion should
have committed the accused to await n
warrant from the proper county for his
arrest. 1b.. Section $3.50 Again, by
Section 443 the Court was authorized.
ION IT'S own view Of the jnrisdictiOnal de-
feet, to arrest judgment without motion"
A> it is apparent on the face Of the record
that the whole of the proceedings were
coram non jud ce, the judgment cannot
he permitted to stand, even though the
motion in arrest was not, in terms, basel
upon that objection.
Judgment reversed aud caus remand,
cd.
. 7