The Portland daily press., 1873-09-19
The Wagner Murder Case.
OPINION OF THE COURT EVERYTHING THE Elk.
CEPTIONS.

State of Maine VS.. Louis H. f. Wagner.
Barrow. j.. All parts of the State are included
within the body of one or another of the Sc Jeral
counties into which the State is divided.
When murder has been done in an unincor-
porated place, publicly and commonly known
by name, in any one of these counties the venue
is well laid and the place sufficiently described,
if the crime is charged in the indictment as
having been committed at (insert the name by
which the place is commonly kuown) place
within the county of (name of county, afore-
said, in the absence of anything tending to
show that the prisoner would, be embarrassed
in the preparation of his defense for want of a
more particular description
When there is no controversy az to the pre-
else spot on the face of the earth where the
crime was committed lana it appears by ancient
charters, Legislative enactments and judicial
records that the political authorities and county
have heretofore claimed and exercised jurisdic-
dicfion over the locality in question, the ques-
ton of jurisdiction is one of aw-for the court,
and the defendant cannot in any stage or form
of pleading rlghtfully claim to have it submit
mitted to the jury as one of fact, for their de-
t. rmination.
Upou such a question the presiding Judge in
addition 10 the matters of which he will take
judicial notice, such as Legislative enactments,
Ancient charters, and geographical position,
may refresh his recollection and guide his judg-
ment by reference to the records of the courts
in the county where he sits, general histories of
deceased authors of established reputation,
and the records of the census of the inhabitants
of the county taken under the laws of the
United States by its officers.
1t IS competent for the Assistant United
States Marshal who took the census for9the dis
trict. and made the return to the office of the
Clerk of the Courts for the county, when the
record does not show the specific locality where
the individuals enumerated resided. to testify
as to their place of residence.
When the political authorities of a State
have actually claimed and received jurisdic-
| ton over particular locality, the Courts of
| that State are thereby Concluded and1 will re
spect such decision, and act accordingly with
out questioning the validity of such claim.
The pris oner was nto wronged by the nstruc-
tions given in this case that proof that the
crime was committed on the Island called
Smut:y Nose is equivalent to proof that it was
committed within the county of York, and
would make the crime properly cognizable by
| the court sitting In the county, That instruc-
| ton was correct.
The outcries of perfon deceased made dur
| ing the preparation of the assault which Ie-
suits psdeath, or upon the approach of the as
! sailant, are competent evidence upon the trial
| of party charger with the murder of such
person, and may be considered by the jury with
| other circumstances and testimony upon the
question of the identity of the accused.
The ontcries of another person who was muir
| dered by the same party few minutes pre-
yiously during the preparation of one and the
same burglary, but on another part of the
| premises, are admitted under like circumstan-
ces for the same purpose upon each trial.
| Such EXPLANATIONS are competent as part of
| the res gestg.
Moreover their admission may be distinctly
! justified for the same reasons which are held
to justify the admission of dying declarations
The coutents of theSprisoner's pockets found
when he is arrested may be put in evidence
when there is testimony tending to show that
they or portion of them came from the recent
possession of the deceased or from the locality
of the crime
Articles which a witness identifies as the
property OF the prisoner, and in his possession
shortly before the crime was committed, when
found shortly after its perpetration at the house
where the crime was committed, may be offer
ed in evidence,