Page:Federal Reporter, 1st Series, Volume 9.djvu/253

 288 FEDERAL REFOBTKR. �V. May's ExW, 6 Cranch, 267 ; Washington Bridge Co. v. Stewart, 3 How. 424, It is also settled that the averment of eitizenship can only be traversed by a plea in abatement to the jurisdiction. If not BO controverted, it is doemed conclusively established. tSmith v. Ker- nochen, 7 How. 216; Jones v. League, 18 How. 81; De Sorby v. Nich- olson, 3 Wall. 423; Evans v. Gee, 11 Pet. 83; Wickliffe v. Owings, 17 How. 48 ; P. W. a B. R. Go. v. Quigley, 21 How. 214. Thus, unlesB a special plea to the jurisdiction putting in issue the allega- tion of the jurisdictional fact of eitizenship is interposed, the juris- dictional fact is conclusively admitted on the record, whether it exists or not; and there can be no doubt that the adjudication upon that fact would be conclusive in all other courts in a collateral proceeding. The place of the commission of all crimes is a jurisdictional fact which must be alleged in the indictment. The ofifence must be com- raitted within the territorial jurisdiction of the court, or it cannot take cognizance of it. Section 22 of the Oregon Criminal Code (Gen. Laws, 343) provides that, with certain specified exceptions, "all criminal actions must be commenced and tried in the county where the crime was committed." The fact that the crime was committed ■within the county for which the court is held, is, then, a jurisdictional fact in the same sense as inhabitancy in the case of an intestate, except that the language in reference to crime as a jurisdictional fact is of a more mandatory character in form of expression. The indict- ment must allege this jurisdictional fact, and, if it is controverted, it must be proved. Will it be said, when this fact is alleged in an indictment, and proved to the satisfaction of the court and jury, that the adjudication thereon by the court is not conclusive, because it turns out that the offence was not in fact committed in the county, or at any other place within the territorial jurisdiction of the court? I apprehend not. Yet if there is error in the verdict on this point, the jurisdictional fact does not exist in the same sense that it is non-ex- istent in the caseof the inhabitancy of an intestate at orimmediately before his death, when there has been an erroneous determination of the fact upon proper allegations and proof. In both cases the court was authorized and required, upon the pleadings and proof s, to inquire into and determine that fact. If the determination is conclusive in the one case it must be in the other. Suppose four or more counties corner together, as they well may, and a murder is committed at or near the common point in a state where the indictment must be fonnd and tried in the county where the crime was committed, the evidence being eonflicting as to the county in which the offence was ��� �