118 Ky. 889 | Ky. Ct. App. | 1904
Opinion of the court by
Denying writ.
J. M. Huffaker, Commonwealth attorney for the Thirtieth Judicial District of Kentucky (which is comprised of Jefferson county), has filed a petition in this court against Hon. S. E. Jones, judge of the Tenth Judicial District (in which is situated Bullitt county), praying that a writ of prohibition Issue out of this court against the respondent to prevent- his taking jurisdiction of the person of one John R. T. Barbour for trial under a charge of murder, said to have
He was presented before the county judge of Bullitt sitting as an examining court, when he was released upon bail for his reappearance at a later day to answer the charge. Immediately after the death of Hagan, Barbour, who had gone to Louisville, where he had been in business, was arrested in Louisville, charged with the crime of murder, the result of the shooting and wounding recited, and was committed without bail by the police court of Louisville, sitting as an examining court, to answer the charge before the Jefferson circuit court. The Jefferson circuit court has not indicted Barbour for the crime, but the Bullitt circuit court has, and the judge of the Jefferson court, criminal division, has upon the hearing of an application for habeas corpus ordered Barbour remanded to Bullitt county for trial.
The complainant claims that the Jefferson’circuit court has the exclusive jurisdiction to try Barbour under the charge of murder. If the Jefferson circuit court has jurisdiction of the offense, and has assumed it, the circuit court of Bullitt county would be without jurisdiction to take and try the defendant upon that charge. The writ of prohibition
At the common law it seems to have been doubtful where the jurisdiction was to try the offense where the stroke or poison was administered in one county and the death resulted in another. To obviate that difficulty, the statute of 2 & 3 Edward VI was passed, which reads as follows: “That when any person shall be feloniously stricken or poisoned in one county and die of the same stroke or poisoning in another county, an indictment therefor found by.jurors of the county where the death happened shall be as good and effectual in law as if the stroke or poisoning had been done or committed in the same county where the party shall die, or such instrument shall be so found.” After that statute it was settled that the trial was in the county where the death happened. East, 382. As the common law of England and the acts of Parliament made in aid of the common law prior to the fourth year of King James I, which were of a general nature, were by the first Constitution of Ken tucky continued in force in this State, and have been since continued in force by the several revisions of the statute law of this State except in so far as modified by our statutes (Parker v. Commonwealth, 12 Bush, 191; Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep., 388), it is argued that the trial must now be in the county where the death happened; that until the death the deed is incompleter
Although there is eminent authority for the proposition that, where the blow was struck in one county and the death
Of the first proposition, the matter turns upon the meaning of the term, “jury of the vicinage.” Literally it signifies of the neighborhood where the crime was committed. The purpose of the requirement is to insure a person charged with crime against being transported to a distant locality for trial, where he can not have the benefit of the presence
Where jurisdiction is concurrent in two or more courts, it is plain that both can not at the same time exercise it, and, if one takes jurisdiction of a particular offense, that another can never do so. The personal presence of the accused at his trial in cases of felony is indispensable under the Constitution. It is equally time that when once in jeopardy the accused can not again be tried for the same offense. These constitutional provisions, aside from the familiar rules of procedure by courts having concurrent jurisdiction of offenses, point to the conclusion that where one court has assumed jurisdiction it becomes exclusive. It is concurrent only so long as neither has begun to exercise it. Section 24, Criminal Code of Practice, merely defines what would probably have been the judicial course in its absence, which is that, if neither court has gone so far as to find an indictment, thereby taking jurisdiction of the offense, then any other court in which it may be tried originally can, by taking the accused into custody, affix its jurisdiction as the exclusive one in the matter. In the case at bar jurisdiction to try the accused was, by statute, as above indicated, concurrent in the two counties where the crime was committed' — the one in which the shot was fired, and the one in which the death resulted. The authorities of the county where the shot was fired first arrested Barbour. So far as he was concerned, the deed was done. It merely depended upon later developments to determine the degree of his crime, if guilty. Having him in custody, it was competent for the examining court of Bullitt county to have changed the charge upon which he was arrested so as to fit the facts of the case at any time pending the in
The writ is denied.