Commonwealth v. Ball

126 Ky. 542 | Ky. Ct. App. | 1907

Opinion op the Court by

Judge Hobson

Certified.

The appellees were indicted by tbe grand jury of Bell county for tbe crime of murder in killing Meade Cottrell. They were placed on trial. The Commonwealth introduced evidence showing that the deceased was killed by the defendants in Bell county by shook ing him with a pistol. The shooting and wounding occurred in the State of Kentucky. After Cottrell was wounded, he was put upon an engine and carried across the State line to his father’s-, in Tennessee, where he died a few hours afterwards. When these facts were shown., on motion of the defendants, the .court, instructed the jury peremptorily to find the •defendants not guilty, which was done, and, judgment having been entered upon the verdict, the Commonwealth appeals.

The first question to be determined is whether the Bell circuit court had jurisdiction where the mortal wound was given in Kentucky and the person shot was carried into Tennessee and died there. In Roberson on Criminal Law, section 214, the rule is thus stated: “At common law, the state in which the mortal wound was given has jurisdiction in cases of homicide, so that, if a mortal wound be given in this State, and death ensues in another, the courts of this State have jurisdiction to try the offender; the going of the injured party into another state being his own voluntary act, and not the act of the defendant. ” In 1 Bishop on Criminal Law, section 113, the rule is thus stated: “The reader perceives that, according to these cases, the crime in felonious homicide consists in inflicting the blow, while the act of dying, which is performed by the injured person, does not constitute any part of it, or at least such a part as to lay the foundation for a jurisdiction over the offense. This accords with what was before held in England, that a homicide is committed in a county if the blow is inflicted in it, though the death’ takes place elsewhere.” These are accurate statements of the law. We therefore conclude that the court erred in instructing the jury peremptorily to find the defendants not guilty.

It is insisted for the State that the judgment of the circuit court be reversed, and the case remanded for a new trial. By section 13, of the Constitution, no person shall for the same offense be twice put in jeopardy of his life or limb. Under this provision, it is held that a person is in legal jeopardy when he is.duly put upon trial, and that the trial begins with the swearing of the jury. In the ease at bar, the defendants were regularly indicted, the jury were regularly impaneled and sworn, and under the instructions of the court, after .the evidence was heard, returned a verdict finding the defendants not guilty. They were undoubtedly put in jeopardy when they were thus placed upon trial, and if they may be tried again they will be put twice in'jeopardy for the same offense. We are referred to a number of authorities holding that, if there is a mistrial which is brought about by the act of the defendant, he cannot rely upon the plea of former jeopardy. ■ Thus, if the defendant asks that the jury be discharged, or if he consents thereto, he qan no more complain of this than he could of the discharge of the jury if he had with a deadly weapon dispersed them and thus broken up the trial. But there is a manifest distinction between a mistrial and a trial where the' jury have found the defendant not guilty. All the cases to which we have been referred by the Attorney General were cases of mistrial brought about by acts of the defendant or by his consent. If the defendant may be tried again when he has been acquitted upon a peremptory instruction asked by him, the same rule should be applied when the instruction, though not in form peremptory, is equivalent to a peremptory instruction, or where the rulings of the court in the admission or rejecting of evidence are equivalent to a peremptory instruction. It is incumbent upon the court to give the jury the whole law of the case, and if the defendant had remained quiescent it would have been the duty of the court to decide the question which was raised by him and instructed the jury upon it. The Constitution guarantees the defendant counsel in the management of his case. The right to the assistance of counsel would he a vain thing if the counsel might not raise such questions as they deemed proper. The guaranty that a person shall not be put twice in jeopardy would amount to but little if he could be tried a second time wherever his acquittal was due to an error of the court committed upon his motion. It is immaterial that the circuit judge gave the peremptory instruction on the ground that the court was without jurisdiction. We cannot go into the reasons which actuated him. The fact is that under the instructions of the court the jury have regularly found the defendants not guilty, and they cannot be further prosecuted. This is ordered to be certified.

The Chief Justice dissents from so much of this opinion as holds that the defendant has been once in jeopardy by the mistrial which resulted from Ms own unauthorized motion.