94 P. 459 | Wyo. | 1908
This is an original proceeding commenced in this court by the plaintiffs praying- for a writ of prohibition to be directed to the defendants, the district court of Juidcial District Number Three within and for Carbon County, and David H. Craig, judge of said court, commanding- it and him to desist and refrain from any further proceedings in a certain criminal action now appearing to be pending in said district court, wherein the State of Wyoming is plaintiff, and the plaintiff herein, Frank J. Keefe, and one William Keefe are defendants. Upon presentation of the petition an alternative writ was issued by this court, and the case has been argued and submitted upon the petition for the writ, the answer of the defendants thereto, and an - agreed statement of facts.
The facts, in so far as they are necessary to an understanding- of the questions decided, are, that on the 22d day
It has not been seriously contended that, the offense charged in these two informations is not the same, and we think there is no room for such contention. The party charged in each is the same person, the person alleged in each to have been murdered is identical, the time and place alleged in each are the same and both charge the same degree of crime. The fact that William Keefe is made a defendant in the second information and is jointly charged with Frank J. Keefe could in no way change the character of the offense. The deceased could be killed but once and at one time and place, and, if the killing was criminal, all who participated in it would be guilty and might be prosecuted therefor either 'jointly or severally. The crime would be single whether the act was that of one or many. The two informations charge the offense in almost identical language, and unquestionably charge the same offense.
It is urged that the county and prosecuting attorney had the right to file as many informations as he chose for the same offense and that such right is recognized by Section 5300, Revised Statutes 1899, which provides, “If there be at any time pending against the same defendant two or more indictments for the same criminal act, the prosecuting attorney shall be required to elect upon which he shall proceed,
’ In the present case the court of Carbon County had original and exclusive jurisdiction to proceed ag-ainst Frank J. Keefe for the killing of King, and it acquired jurisdiction of his person by the filing- of the first information by the county attorney and on his being arrested and brought before the court on the charge therein contained. When the change of venue was granted by the court of Carbon County to the district court of Albany County and the original papers and transcript were filed in the latter, fhe jurisdiction of the district court of Albany County became complete, and the cause then stood for trial at the first regular term thereafter in that court. (Sec. 4289, R. S. 1899.) It then became the duty of the county attorney of Albany County to prosecute the case as though it had originated in that county. (Sec. 1104, R. S. 1899.). “The trial shall be conducted in all respects as if the offender had been indicted or informed against in the county to which the venue has been changed.” (Sec. 5336, R. S. 1899.)
Counsel for the defendants here, while conceding that by the change of venue the court of Albany Couirty acquired exclusive jurisdiction and the court of Carbon County lost jurisdiction, argues that the jurisdiction thus acquired by the former and lost by the latter was the right to try the accused upon that particular information and did not deprive the court of Carbon County of jurisdiction to try him upon another information preferred against him in that county for the same offense. In support of this proposition he cites a number of Missouri decisions. Those cases were decided under a statute of that state which provided, “If there be at any time pending against the same
The effect of the change of venue was to invest the court of Albany County with complete and exclusive jurisdiction to try Keefe upon the first information for the offense therein charged. It is not claimed that the first information is not a good and sufficient information charging Keefe with murder in the first degree for the killing of Kirtg, the same offense charged in the second information. When the district court of Carbon County granted the change it lost jurisdiction to try Keefe for the crime there charged against him by the information on which it was then proceeding and could not, either directly or indirectly, vacate its order making the change after, the original papers and transcript were filed in the district court of Albany County and the
In Smith v. Commonwealth, 95 Ky., 322, Smith had been indicted in Perry County for murder and the venue was changed to Clark County. While this indictment was still pending and undetermined in the Clark circuit court, the grand jury of Perry County again indicted Smith for the murder of the same person. Objection was made to the jurisdiction of the circuit court of Perry County, but that court held that its jurisdiction over the case had not been divested by the transfer of the former indictment to Clark County; and was about to proceed with the trial when Smith applied for and procured a change of venue to Bell County. In the latter court the same questions as to the jurisdiction were- presented and were overruled and the case proceeded to trial under protest, resulting in the conviction of Smith, and he appealed. The court said: “It is clear that by its transfer of the case to the Clark circuit court the Perry circuit court lost all jurisdiction over the subject matter of the indictment. The proceedings, therefore, thereafter had on the second indictment were void for want of jurisdiction in the court in which they were had, and this is true of the attempted trial in the Bell circuit court. * * * The so-called trial in Bell was, in legal contemplation, n© trial at all, and the same would have been true of every attempted trial in Perry on this second indictment.”
It seems reasonable that a defendant ought not to be required to defend against two or more charges for the same offense at the same time, especially when there is no question as to where the alleged offense was committed; and our statute recognizes that principle in Section 5300 above quoted. According to the theory of counsel for defendants in this case, the district court of Albany County has complete and exclusive jurisdiction to try Keefe for the murder of King on the first information, and the district court of Carbon County, or the district court of some other county to which the same might be transferred on change of venue, has complete and exclusive jurisdiction to try him for the same offense on the second information; and there is nothing to prevent the two cases from being set for trial on the same day. Neither county attorney could elect upon which he should be tried, for the very obvious reason that he has no control over the case pending
It is also contended that a writ of prohibition should not issue in this case because Keefe has an adequate remedy by appeal from the decision of the district court in holding that it has jurisdiction. Without entering upon a discussion of the application of a writ of prohibition, we deem it sufficient to say, that one of the principal purposes of the writ is to prohibit an inferior court from proceeding in a cause over the subject-matter of which it has no jurisdiction, and which if proceeded in may result in injury or damage for which the party has no adequate or complete remedy in the usual course of law. If such remedy exists and is complete and adequate the writ should not issue.
In the case at bar we have held in the former part of this opinion that the district court of Carbon County does not have jurisdiction of the subject-matter of the action in which further proceedings are sought to be prohibited. Has Keefe then an adequate and complete remedy by proceedings in error for the injury or damage he may suffer? We think this 'question must be answered m the negative. If the case is to proceed in the district court of Carbon County, he must give bail for his appearance or go to jail until he is tried: must be at the expense of defending himself against the most serious charge that could be brought against him, and that in a court having no right to try him; and if convicted, remain in custody until he can have the case regularly heard and determined in this court on proceedings in error. “There must not only be a right to appeal, but the appeal must- furnish an adequate remedy, in order to prevent the issuance of the writ.” (Havemeyer v. Superior Court, 84 Cal., 327 (18 Am. St. Rep., 192, on p. 238); People ex rel. L'Abbe v. District Court, 26 Colo., 386; State ex rel. Cummings v. Superior Court, 5 Wash.,
Let the writ issue prohibiting the defendants, the district court of Carbon County and Hon. David H. Craig, the judge thereof, from further proceeding- against the plaintiff, Frank J. Keefe, in the action now pending in said -court wherein the State of Wyoming- is plaintiff, and the said Frank J. Keefe and William Keefe are defendants, numbered 518, during the pendency of the case of the State of Wyoming vs. said Frank J. Keefe, now pending in the district court of Albany County. Writ allozved.