Blyew v. Commonwealth

• Decision Date: 03 February 1891
• Parties: BLYEW v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

15 S.W. 356

91 Ky. 200

BLYEW v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 3, 1891

Appeal from circuit court, Lewis county.

Thomas & Pugh, for appellant.

P. W Hardin, for the Commonwealth.

LEWIS J.

It appears that the crime of murder the conviction of which appellant now complains was committed in 1868, and he states in the plea filed in the lower court that he was for the offense indicted, tried, and convicted in the United States circuit court. He further states that he was afterwards, in 1873, indicted and tried in the same court where the judgment appealed from was rendered, but there was then no verdict or judgment rendered, the jury disagreeing. It appears that after that appellant escaped from jail, and remained out of the jurisdiction of the court until 1890, when another indictment was found, and under it, and not the one of 1873 he was convicted.

1. As the United States circuit court had no jurisdiction of the offense, he has not, in the meaning of section 14, art. 13 of the state constitution, "for the same offense be twice put in jeopardy of his life;" and there was nothing to prevent the trial and conviction in the state court.

2. Section 118, Crim. Code, defines an "indictment" as an accusation in writing, found and presented by a grand jury to the court in which they are impaneled, charging a person with the commission of a public offense. It does not appear why appellant was tried under the indictment found in 1890 instead of the one found in 1873, and it must therefore be assumed the first one was lost or mislaid during the long period which elapsed between 1873, when appellant fied, and 1890, when he was rearrested. But while there is no provision in the Code expressly authorizing a new indictment found without some order of court in reference to the first one, we do not see how appellant's substantial rights have been prejudiced; for he has by the new indictment been accused of and put on trial for the identical offense with which he was charged in the other, and in every particular the same proceeding has been had that could have taken place if there had been but one indictment.

Upon the motion for a new trial, affidavits were filed tending to show that after the case was submitted to the jury, and they had retired to their room in the courthouse for deliberation two of the jurors went to another room in the same building, and remained 30 minutes or...