192 Ky. 171 | Ky. Ct. App. | 1921
Opinion op ti-ie Court by
Dismissing the petition.
. John Bailey was indicted for the crime of murder in the Knox circuit court, and by an order of the same court, was being held in the custody of the jailer of Harlan county upon the charge of which he was indicted. For the purpose of being admitted to bail for his appearance to answer the indictment, he procured the judge of the circuit conrt for the district of which Harlan county is a part, to cause the jailer of Harlan county to produce him before the judg'e, by a writ of habeas corpus. After a heading before the circuit judge upon the writ, and the return thereto, the judge denied him the right to execute bail, and remanded him to the jailer. In the meantime, the Knox circuit conrt wherein the indictment was pending, granted a change of venue of the prosecution, under the indictment to the circuit conrt of Rockcastle county, and Bailey was, by the order of the Knox circuit court, transferred to and delivered into the custody of the jailer of Rockcastle county, to be there held to answer the indictment. Thereafter at a term of the Rockcastle circuit court, the action was upon the motion of Bailey continued, and he was again remanded to the custody of the jailer to await his trial at another term of the court. Thereafter and after the adjournment of the Rockcastle circuit conrt, and while the judge of that conrt was absent from Rockcastle county, Bailey procured the judge of the Mt. Yernon police court to issue a writ of habeas corpus in his behalf, commanding the jailer to bring him before the judge of the county court for the purpose of having a hearing before him, as to whether or not he
The defendant has demurred specially to the petition upon the ground that this court is without jurisdiction to grant a writ of prohibition against the judge of a police court and relies for his contention upon sections 474 and 479 of the Civil Code, and section 25 of the Criminal Code, by which he contends that exclusive jurisdiction has been granted to the circuit courts to grant writs of prohibition against inferior jurisdictions. Those sections of the Codes, it is true, clothe the circuit courts with, jurisdiction to grant writs of prohibition against county, quarterly, fiscal and police courts and justices of the peace, but the jurisdiction of this court in such matters is bestowed by section 110 of the Constitution, and can not be affected by legislative'action, such as the provisions of the Codes. The writ of prohibition, how\ ever, in this court, is a discretionary one, and its juris-) diction to grant one will not be exercised when the ap- I plicant has another adequate remedy. In the instant 1 case, the circuit court was not in session, its judge was ' absent from the county, and could not be applied to for a temporary preventive order, as provided by section 476, Civil Code. The jurisdiction to restrain, by a writ of prohibition, an inferior jurisdiction, has often been exercised by this court. Board of Prison Commissioners v. Crumbaugh, Police Judge, etc., 161 Ky. 540; Rush v. Denhardt, 138 Ky. 238; I. C. R. R. Co. v. Rice, 154 Ky. 198.
Whether or not the temporary, writ granted herein should be made permanent, as a matter of course, de
The petition is therefore dismissed.