F. M. Hanks v. The State, 13 Tex. Ct. App. 289

White, P. J. There is -but a single question which we think is involved in and requires discussion on this appeal. Appellant and one P. P. Dillman were jointly indicted’in the District Court of Travis county for the forgery of a transfer of a land certificate for a league and labor of land in the State of Texas. It is alleged in the indictment that the acts constituting the forgery were all committed in Caddo parish, in the State of Louisiana.

Ho act or thing connected with the execution of the forgery is charged to have been done in Texas; but the crime and injury, so far as this State is concerned, are averred to consist in the fact that the said forgery in Louisiana “did then and there relate to and affect an interest in land in the State of Texas, * * * and would, if the same were true and genuine, have transferred and affected certain property, to-wit, a certain land certificate, number 222, for one league and labor of land in the State of Texas,” etc. This indictment was brought under

Article 451 of the Penal Code. By

Article 454 of the Code it is declared that “persons out of j the State may commit and be liable to indictment and convic- i tian for committing any of the offenses enumerated in this j

chapter which do not in their commission necessarily require a I personal presence in this State, the object of this

chapter being j jto reach and punish all persons offending against its provisions, ¡whether within or without this State,” etc.

It was made a ground both in the motion to quash the indictment and in arrest of judgment, and is again urgently insisted upon in the able brief of counsel for appellant, that the facts alleged, if true, would constitute an offense against the sovereign State of Louisiana alone, and one of which the courts of this State would have no jurisdiction. / If the position thus assumed in behalf' of appellant be correct, then the Legislature had no authority to- pass the act quoted, and the same is an absolute nullity. Can this proposition be maintained?

It certainly cannot be found in any constitutional inhibition, State or Federal, depriving the Legislature of the authority, and unless there is some authority of law superior to the right of a State Legislature, which could and should control the action of the latter within the scope of its constitutional powers, we cannot well conceive how its enactments, if reasonable and consistent with that power, could be held inoperative and nugatory. X Two authorities, which are to the effect that “the Legislature of one State cannot define and punish crimes' committed in another State,” are mainly relied upon.

The leading one is the case of The State v. Knight, taken from 2 Haywood, and reported in Taylor’s North Carolina Reports; page 44. The other is People v. Merrill, 2 Park’s Criminal Reports, 590.

The defendant in the first case was indicted under a statute the words of which were: “And whereas there is reason to apprehend that wicked and ill disposed persons resident in the neighboring States make a practice of counterfeiting the current bills of credit of this S^ate, and by themselves or emissaries utter or vend the same, with an intention to defraud the citizens of this State: Be it enacted, etc., that all such persons shall be subject to the same mode of trial, and on conviction liable to the same pains and penalties as if the offense had been committed within the limits of this State and prosecuted in the superior court of any district of this State.” It was held that the jurisdiction to try in North Carolina was doubtful, and the prisoner was discharged.

Mr. Wharton, in his work on the Conflict of Laws, says: “The sturdiest advocates of the hypothesis that the locus delicti alone confers jurisdiction have admitted that there are cases in which a person whose residence is outside the territory may make himself, by conspiring extra-territorially to defeat its laws, infra-territorially responsible.

If, for instance, a forger should establish on the the Mexican side of the boundary between the United States and Mexico a manufactory for the forgery of United States securities, for us to hold that when the mischief is done he can take up his residence in the United States without even liability to arrest, would not merely expose our government to spoliation, but bring its authority into contempt.

To say that in such a case the Mexican government can be relied upon to punish is no answer; because, first, in countries of such imperfect civilization, penal justice is uncertain; secondly, in cases where, in such country, the local community gains greatly by the fraud and suffers by it no loss, the chances of conviction and punishment would be peculiarly slight; and, thirdly, because all that the offender would have to do to escape' justice in such a case would be to walk over the boundary line into the United States, where on this hypothesis he would go free.” (Whart.

Conflict of Laws, sec. 876.) Again he says: “Thus it has been held that the originator of a nuisance to a stream in one country which affects such stream in another country is liable to prosecution in the latter country; that the author of a libel uttered by him in one country and published by others in another country from which he is absent at the time is liable in the latter country; that he who on one side of a boundary shoots a person on the other side is amenable in the country where the blow is received; that he who in one State employs an innocent agent to obtain goods by false pretenses in another State is amenable in the latter State; and that he who sells through agents, guilty or innocent, lottery tickets in another State is amenable in the State of the sale, though he was absent from such State personally.

In England we have the same principle affirmed by the highest judicial authority.” And he quotes. Lord Campbell as saying, “that a person may, by the employment as well of a conscious as of an unconscious agent, render himself amenable to the law of England when he comes within the jurisdiction of our courts;” and Sir R. Phillimore as saying, “It is a monstrous thing that any technical rule of venue should prevent justice from being done in this country on a criminal for an offense which was perpetrated here but the execution of which was concocted in another country.” (Whart. Conflict of Laws, sec. 877.

See also Adams v. People, 1 Comstock N. Y., 173; Corn monwealth v. McLoon, 101 Mass., 1; Ham v. State, 4 Texas Ct. App., 645; Rogers v. The State, 10 Texas Ct. App., 655.) Mr.

Cooley, in his great work on Constitutional Limitations, treating of territorial limitation to legislative authority, says: “The legislative authority of every State must spend its force within the territorial limits of the State. * * * ' It cannot provide for the punishment as crimes of acts committed beyond the State boundary, because .such acts, if offenses at all, must be offenses against the sovereignty within whose limits they have been done.” But, after laying down this doctrine, in the ¿very next sentence he says: “But if the consequences, of an .'unlawful act committed outside the State have reached their ultimate and injurious result within it, it seems that the perpetrator may be punished as an offender against such State.” (Cooley’s Const.

Lim., 4.ed., pp. 154-5.) If this latter rule be the law, then it is a solecism to say that the Legislature cannot so declare it by express enactment. Story, in his Conflict of Laws, says: “Although the penal laws of every country are in their nature local, yet an offense may be committed in one sovereignty in violation of the laws of another, and if the offender be afterwards found in the latter State, he may be punished according to the laws thereof, and the fact that he owes allegiance to another sovereignty is no .bar to the indictment.” (Story on the'Conflict of Laws,-4 ed.,

section 6256.) The offense charged in the indictment against appellant comes clearly within the terms of

Article 454 of the Penal Code. Had it been committed by one of our own citizens within this State, there then could be no question as to his liability. Here, the defendant in effect says: “You may try and convict-your own citizens for the same act I have committed, but you cannot try and punish me, because what I have done, though equally as violative of the spirit and letter of the law, is still not triable in your court because it was committed in another State, and your Legislature could not pass a law which could embrace me within its pains and penalties.” We can see no valid reason why the Legislature of the State of Texas could not assert, as it has done in

Article 454 supra, her jurisdiction over wrongs and crimes with regard to the land titles of the State, no matter whether the perpetrator of the crime was at the time of its consummation within or without her territorial limits. Such acts are offenses against the State of Texas and her citizens only, and can properly be tried only in her courts. It may in fact be no crime against the State in which it is perpetrated; and if it is, under such circumstances as we are considering, that other State would have no interest in punishing it, and would rarely, if ever, do so.

When this forgery was committed in Louisiana, eo instanti primeras committed against, and injury done to, the State of TeSs^B^cause it affected title to lands within her sovereignty. Our conclusion is that.the Legislature had authority to adopt the act in question; that "the same is in violation of no law superior thereto; and that the jurisdiction thereby conferred can be rightly exercised by the courts of this State. The defendant appears to us to come clearly within the scope of that jurisdictian.

He has been, as far as we can see, fairly and impartially tried under the law, and legally convicted according to the evidence exhibited in the record. We have found no error for which a reversal of the judgment should be had, and it is therefore affirmed. Affirmed.