
    Samuel Stoughton vs. The State of Mississippi.
    The statute (Hutch. Code, 893), which makes instructions of the circuit court parts of the record without bill of exceptions, does not apply to criminal cases.
    It seems doubtful whether, if a mortai blow were given in one county, and the death happened in another, the party killing could be indicted at common law in either county.
    However- that may be, in this state, by express statute, Rev. Code (Poindexter), 314, the party may be indicted in the county wherein the death took place; and, in the absence of clear authority at the common law for indicting him in the county where the mortal blow was given, an indictment there could not be sustained.
    And a prisoner convicted under such an indictment would be remanded to the county where the death occurred, for a new indictment.
    In error from the circuit court of Perry county; Hon. A. B. Dawson, judge.
    
      F. Anderson, for plaintiff in error,
    On the point of the jurisdiction of the circuit court of Perry county to try the offence, cited and commented on 1 Hale, P. C. 425, 426. This authority is not sustained by reference to any decisions, and is not supported by the reasoning of the author. 1 Hawk. P. C. 93, 94; 2 Ib. 30Í, 302, 303, vide § 40; 2 Hale, P. C. 262; lb. 162, 163; 1 East, P. C. ch. 5, § 128, 361; 2 Hale, 66; 2 Pickering, 550; 2 Eng. St. at Large, 422; 4 Blackstone, .303.
    
      D. C. Glenn, attorney-general for the state,
    In reply to Anderson, contended that Congress made the common law in force in the Mississippi territory. 2 Stewart, 362. English statutes, passed before the emigration of our ancestors, which are in amendment of the law and applicable to our situation, constitute a part of our common law. 3 Peters, 559 ; 1 Mass. 61; 2 lb. 535; 13 lb. 354; 1 Dali. 67, 75; 8 Pickering, 309; 9 1b. 532; 3 Greenl. 162; 6 lb. 55; 3 Gill & Johns. 62; Charlton, 167; Coxe, 338, note. i
   Chief Justice Sharkey

delivered the opinion of the court.

The prisoner was convicted, in the circuit court of Perry county, of the murder of J. A. Harvey. He moved for a new trial, because the verdict was contrary to law and evidence, and because the court erred in refusing charges asked by the prisoner, and in giving those asked by the district attorney. On these points we need make no comments. Indeed, on the charges we could not; they are not presented by bill of exceptions, but noted by the clerk as having been given or refused. The law of 1846, which provides for so noting charges that may be given or refused, and makes them part of the record, without bill of exceptions, applies only to civil cases. Hutch. Code, 893.

The case must turn on a different point; the wound was inflicted in Perry county, where the prisoner was indicted, but the death occurred in Harrison county. In such cases there is an express statutory provision requiring that the indictment should be found in the county where the death occurs. Poindexter’s Code, 314. This statute seems to have been overlooked in the subsequent compilations, though it is not repealed, at least we have found no act repealing it. It simply provides that the indictment, found in .the county in which the death may happen, shall be good and valid in law. The better opinion seems to have been, that, by the common law, when the blow was given in one county, and the death happened in another, the offender was not indictable in either. This, however, was a point that gave rise to doubts. The difficulty was obviated by the statute of Edward VI., which made the offence triable in the county where the death happened. Our statute was passed with the same object. It does not, it is true, say the prisoner shall not be tried in the county where the stroke was given ; and if it could be clearly shown, that he was triable there by the common law, perhaps the statute might be regarded as giving the additional power to try him in the county where the death happened, without interfering with the jurisdiction as at common law. But as the question was, to say the least of it, doubtful at common law, the statute must be regarded as the only law on the subject. The indictment was, therefore, improperly found in Perry county, for which reason it must be quashed, and the prisoner remanded to Harrison county for indictment and trial.  