197 Ky. 208 | Ky. Ct. App. | 1923
Opinion op the Court by
Denying motion for writ of 'prohibition.
The petitioners, Elkhanah Clemons, Nathan Clemons, Wilson Clemons and Henderson Combs, instituted this proceeding in this court against B. C. Stoll, judge of the Fayette circuit court, and W. W. WTUiams, judge of the Knott circuit court, to stay proceedings on a bench warrant issued on an indictment returned in the Fayette cir-
Answer has been filed by the Commonwealth of Kentucky, denying that the Payette circuit court is without authority to try the petitioners, and alleging that such proceedings as have been had in the Knott circuit court, with regard to the prosecution of petitioners for the murder of Henry Noble, were fraudulently procured and had at the instance of petitioners for the purpose of defeating the rightful jurisdiction of Payette county. This affirmative defense has been traversed, and on the issues thus made proof has been taken.
In July, 1921, Green Watkins and Henry Noble were mortally wounded in Knott county. Watkins died in that county, but Noble was taken to Lexington, where he died on July 29th. Immediately thereafter a warrant was issued from Payette county and placed in the hands of the sheriff of Knott county for the arrest of petitioners on the charge of murdering Henry Noble. It is shown in the proof that the killing of Watkins and Noble occurred, at a point near the Breathitt county line, a day or two before the convening of the Knott circuit court, and that friends of the petitioners visited the Commonwealth attorney of the Knott circuit court and urged him to cause indictments to be returned against petitioners in that court at the term then in session, agreeing to surrender the petitioners to the officers of the law upon the return of the indictments; that warrants for the arrest of petitioners had been issued by the authorities of Breathitt county, and the Commonwealth attorney, believing that there was danger of violence if those warrants were executed, agreed to procure indictments in Knott county; and that the friends of petitioners went before the grand jury of that county and assisted in procuring an indictment. Before the return of the indictment, however, the petitioners were arrested by the sheriff of Knott county, who at that time had in his possession three warrants for their arrest, one from Payette county, one from Breathitt, and one from Knott county. The arrest was made at, the solicitation of the friends of the petitioners on the war
Under the state of facts given we are asked to prohibit the prosecution on the indictment pending in the Fayette circuit court on the ground that the jurisdiction of the offense, if any was committed, is in Knott county. Section 1147 of Kentucky Statutes provides: “If a mortal wound or other violence or injury be inflicted, or poison be administered, in one county or corporation, and death ensues in another, the offense may be prosecuted in either.” Section 21 of the Criminal Code provides: “If an offense be committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the jurisdiction is in either county.” And in section 24 of the Code it is said: “If the jurisdiction of an offense be in two or more counties, the defendant shall be tried in the county in which he is first arrested, unless an indictment for the offense be pending in another county.” Under the section of the statutes cited, jurisdiction of the offense exists in the
In this case it is undoubtedly true that Fayette county, as between it and Knott county, was the first to issue a warrant for the arrest of the petitioners. If the issuing of that warrant, and the placing of it in the hands of the sheriff of Knott county for execution, gave to Falette county precedence in the .prosecution of the offense, then manifestly the subsequent proceedings in Knott county would not defeat the jurisdiction already fixed; and especially is that true if, as contended by the Commonwealth, the prosecuting attorney for Knott county-quashed the indictment in that county and failed to have another returned because of his belief that the jurisdiction was in Fayette county.
Spencer v. Commonwealth, 194 Ky. 699, is decisive of this case. With respect to the jurisdictional effect of the issuing of a warrant this- court, in that opinion, said: “To carry this doctrine of diligence to its logical conclusion, if before an indictment is returned, an officer has in his hands at the same time, process for the arrest of the offender for the same offense from two or more counties having jurisdiction, he should execute first the process which came to his hands, or was issued first.” And further, “but the officer with a warrant in his hands cannot, in good faith, disregard the warrant and arrest, as if he had no process, and thus establish jurisdiction in the county where he made the arrest, and defeat the attaching of jurisdiction of the .person of the offender in the county from which the warrant issued.” This language is directly applicable to the facts in the instant case, since the evidence conclusively shows that the sheriff of Knott county, although his purpose seems to have been laudable, held a warrant for the arrest of petitioners from Fayette county prior to the time that he procured the_ county judge of Knott county to issue a warrant for their arrest, and at the time of arresting them had in his possession not only the warrant from Knott county but also the prior warrant from Fayette county. In these
Our conclusion, therefore, is that the jurisdiction of Payette county was the first to attach to the offense charged and that court has full authority to proceed with the prosecution against petitioners. The motion is denied and the petition is dismissed.