first appreciable damage, if any, to the plaintiff's lot from that bridge occur? From that point of time prescription commenced to run. When that first damage occurred is a question of fact. Whether ten years elapsed from it is a question of fact. There was a great deal of evidence before the jury bearing on that crucial point, crucial for the solution of this point. The plaintiff claimed it was later in date than did the defendant. The court took the solution of that question away from the jury, and therein erred.

If in fact that bridge did change the natural course of the current of Coal River and thereby injure the plaintiff's lot; if that and not the natural flow did the injury, then that injury is one consequental from the building of the bridge, and dates from the first injury or damage, not from the building of the bridge. 2 Wood on Nuisances, s. 708, says: "There is a distinction between a prescriptive right to do some act upon one's own premises that operates injuriously to another, and a right to do some act upon another's premises. In the latter case, each act of user, before the user ripens into a right, is a trespass, for which an action may be maintained at any time, while in the former no action can be maintained until some right has been invaded. In the one case there is an actual invasion of the property itself, while in the other there is a mere invasion of some right." In the one case the mere exercise of the right, like a right of way over another's land, or a backing of water by a dam, is at once the commencement of the right; but in the other case, like the case in hand, where the injury is a mere consequence, not occurring eo instanti, it is otherwise. That bridge may have been causing the injury for a period sufficient to raise a prescription; but whether it had or not was a question for the jury.

All questions of fact are left untouched by this decision. It is because the court took the material questions from the jury that we reverse the judgment. There was enough evidence bearing upon those questions before the jury to call for the case being tried by a jury. See Ketterman v. Dry Fork Railway Company, 37 S. E. 683. Judgment reversed, verdict set aside, new trial granted.

Reversed.

CHARLESTON.

STATE v. ELLISON.

Decided March 9, 1901.

1. ACCESSORY BEFORE THE FACT-Venue.

i

The crime of an accessory before the fact, though inchoate in the act of counseling, advising, aiding, abetting, hiring, and commanding, is not consummated until the deed is actually done. It is the doing of the deed, and not the counseling, advising, aiding, etc., merely, that makes the crime complete; and it is for the deed, the result of the counseling or procuring, and not for the counseling or procuring itself, that the accessory is indicted. Therefore the locus in quo of the offense of an accessory before the fact to a felony is in the county in which the felony is done. The crime is only complete when the felony is done, and the jurisdiction for the trial of the criminal may be where the felony is committed, and, under our statute, may also be in the county in which the accessorial act is done. (p. 74). 2. INDICTMENT MUST LAY-Venue of Accessorial Act.

But when the indictment fails to lay the venue of the accessorial act of counseling, advising, abetting, hiring, etc., 'according to the fact, the indictment is bad on demurrer for uncertainty. (p. 75).

3. STATUTE-Construction-Reasonable Doubt.

When the constitutionality of a statute is in question, it is a well-established rule of construction that the reasonable doubt must be resolved in favor of the constitutionality of the law. (pp. 75, 76).

Error to Circuit Court, Braxton County.

James Ellison was convicted of abetting the theft of a horse, and brings error.

DULIN & HALL, for plaintiff in error.

Reversed.

EDGAR P. RUCKER, ATTORNEY GENERAL and LUTHER C. ANDERSON, for the State.

MCWHORTER, JUDGE:

At the August term, 1899, of the circuit court of Braxton County, the grand jury of said county returned the following indictment:

"The grand jurors of the State of West Virginia, in and for the body of the county of Braxton, and now attending the said court, do upon their oaths present that Peter McCune and Hamp Stalnaker on the day of October, 1897, in the said county, did feloniously steal, take and carry away one horse and one sorrel horse and one sorrel mare of the value of eighty dollars of the goods and chattels of M. F. McMorrow. And the grand jurors aforesaid upon their oaths aforesaid do further present that James Ellison and Matt Shiffllet before the said felony was committed in form aforesaid, to-wit: on the day of 1897, did unlawfully and feloniously counsel, aid, abet, procure, hire and command the said Peter McCune and Hamp Stalnaker to do and commit the said felony in manner and form aforesaid, against the peace and dignity of the State."

The defendant James Ellison appeared and demurred to said indictment, which demurrer was overruled, plea of not guilty entered, jury trial, verdict of guilty, motion to set aside verdict and grant new trial, which was also overruled, judgment and prisoner sentenced. Defendant saved four several bills of exceptions, and obtained a writ of error, and makes five assignments, but does not insist upon those based upon the admission of improper evidence, as the evidence is not all certified, but relies upon his demurrer to the indictment, and the error assigned for giving improper instructions by the court on behalf of the State, and refusing proper instructions asked by the defendant. Counsel for defendant insists that the indictment should allege that the accessorial act was committed in Braxton County, in order to give the circuit court of Braxton County jurisdiction, and cites State v. Hobbs, 37 W. Va. 812, where it is held, "That the alleged crime was committed within the jurisdiction of the court must be shown in the indictment and proved as charged." Also 1 Bishop's Crim. Pro. s. 360, "The place of the offence must be alleged and proved, also no jurisdiction of the court over the transaction appears," and raises the constitutional question as to the jurisdiction of the circuit court of Braxton County, that section 8, chapter 152, Code, in so far as it authorizes the indictment and trial of an accessory before the fact, in the county in which the principal felony was committed, although the accessorial act occurred in another county, is repugnant, to Art. III, s. 14, of the Constitution, which provides that "Trials of crimes and misdemeanors, unless herein otherwise provided shall

be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offense was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county." State v. Lowe, 21 W. Va. 782, is confidently relied on by counsel for defendant to sustain his contention. There it is held that section 12, chapter 152, Code, which authorizes a crime to be prosecuted and punished in a county in which the offense was not committed, when the crime. was committed within one hundred yards of the boundary line of the county, is unconstitutional, null and void, as being in conflict with said Art. III, s. 14 of the Constitution. In the case cited JUDGE GREEN refers to the case of Armstrong v. State, 1 Caldwell 338, (Tenn.), where the court decided, as stated by JUDGE GREEN, "that a provision of their Code, s. 4976, which provided that 'when an offense is committed in the boundaries of two or more counties, or within a quarter of a mile thereof, the jurisdiction is in either county,' was unconstitutional, null and void, it being in conflict with their constitution, which they interpreted to be in this respect the same as ours." JUDGE GREEN proceeds to say: "This case is directly in point, and is entitled to great consideration by us, especially as the court reached this conclusion reluctantly, and only because they regarded the law as being in direct conflict with the constitution." The constitution of Tennessee, Article I, section 9, guarantees to the accused "A speedy public trial by an impartial jury of the county in which the crime shall have been committed." Substantially identical with ours, in so far as it fixes the venue in criminal While this statute provides that an accessory before the fact may be prosecuted and convicted for a felony, whether the principal felon has or has not been previously convicted, the offense being cognizable in any court having jurisdiction of the crime of the principal felon, also substantially the same as our statute on the same subject. Section 8, chapter 152, Code, State v. Ayres, 8 Baxter (Tenn.) 96, is a case directly in point, and as stated by JUDGE GREEN in the Lowe Case, "is entitled to great consideration by us." The question has never been passed upon by this Court. The real inquiry in the case is, where was the crime committed by the accessory? If the horse had never been stolen, had the accessory done anything for which he could have been prosecuted? If not, when and where was his act consummated? In the Ayres Case just cited John Webb and David

cases.

Duncan were indicted for the murder in Knox county of Richard F. Reynolds, and in the same indictment it was charged that Joseph Ayres and Columbus Ayres, before the said felony and murder was committed as aforesaid, to-wit, the day and year aforesaid in the county of Anderson, State of Tennessee, did unlawfully, maliciously and feloniously move, incite, counsel, hire, command and procure the said John Webb and David Duncan," etc., to commit said felony and murder. This question is very well discussed in the Ayres Case just cited. I quote from the opinion: "The sole question presented is whether the prisoner, who in one county of this State counseled, hired, procured or commanded a murder to be committed in another county of this State, is indictable in the county where the murder was actually consummated, or in the county in which such counseling, hiring, commanding or procuring was done as accessory before the fact to such murder."

The indictment was framed under the provisions of the Code, section 4975, in the words following:

"Where an offense is committed partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county."

It is insisted in behalf of the prisoner that the statute is repugnant to that provision of the Constitution which guarantees to the accused "a speedy public trial by an impartial jury of the county in which the crime shall have been committed." Constitution, Article I, section 9, and this depends upon the inquiry, where was the crime of accessory before the fact committed in this case? ***

The crime of accessory before the fact is a peculiar one. The absence of the accessory at the time and place of the principal offense is an essential element of the crime. Thus Sir Mathew Hale defines the accessory before the fact to be "one, who being absent at the time of the crime committed, doth get, procure, counsel or command another to commit a crime." Herein absence is necessary to make him an accessory. The crime of the accessory before the fact is not in merely counseling, hiring or commanding the crime to be committed, for if the crime be not at last committed, there is no such offense,; but the connivance and the result aimed at must occur, and the latter must be the effect of the former in order to complete the crime. Thus says Sir