Boone v. Riddle

• Decision Date: 03 May 1905
• Citation: 86 S.W. 978
• Parties: BOONE v. RIDDLE, Judge, et al.
• Court: Kentucky Court of Appeals

86 S.W. 978

BOONE v. RIDDLE, Judge, et al.

Court of Appeals of Kentucky.

May 3, 1905

"Not to be officially reported."

Petition of James H. Boone for writ of prohibition to Robert Riddle judge of Breathitt circuit court, and another. Denied.

D. L Pendleton and Pendleton & Bush, for plaintiff.

Hazelrigg & Hazelrigg, for defendant Riddle. B. A. Crutcher, for defendant Benton.

NUNN J.

The facts leading up to the application for this writ of prohibition are in substance as follows: One Mose Feltner was indicted for murder in the Breathitt circuit court at some date prior to October, 1901, and upon his trial was convicted and sentenced to the penitentiary. Feltner appealed to this court, and his case was reversed for errors on the trial. See Feltner v. Commonwealth, 64 S.W. 959, 23 Ky. Law Rep. 1110. This case was remanded to the Breathitt circuit court for a new trial. Feltner gave bond on the return of the case, but at the succeeding term did not appear, and his bond was forfeited. He remained a fugitive from justice until some time in 1904, when he was apprehended or surrendered himself and again gave bond for his appearance in that court. His case was set for trial at the February term, 1905. On the call of the case in the Breathitt court about February 22 1905, it was learned that Feltner, who lived in Leslie county, was in jail in Clark county; he having failed to give bond for his appearance in the Clark circuit court to answer a charge of contempt for failing to appear as a witness in a civil case tried in that court. It was also learned that one Sam Fields, an important witness for the commonwealth against Feltner, was also in the Clark county jail on the same charge as that of Feltner; that Fields was either under bond or on recognizance to appear as a witness against Feltner. On motion of the commonwealth's attorney, the Breathitt circuit court made and entered an order appointing a special bailiff to go to Clark county after Feltner and Fields. This order directed the jailer of Clark county to deliver Feltner and Fields to the special bailiff, to be by him taken to the Breathitt circuit court for the purposes above indicated. A warrant of arrest also seems to have been issued for Feltner. These orders were disobeyed by Boone, the jailer of Clark county, under the advice of his attorney and the judge of the Clark circuit court. The judge of the Breathitt circuit court issued a rule for contempt against him, and in response thereto he stated that he was advised as above, and also stated that Feltner and Fields had been summoned as witnesses in a civil action in the Clark circuit court some time in the fall or winter of 1904, but had left, and failed to testify. Thereupon a rule was issued against them for contempt in disobeying the subp nas, and they were brought to Clark county and placed in jail in default of bond, to await a hearing on the rule to be tried at the next term of the Clark circuit court, which convened in April. He also stated that in disobeying the orders of the Breathitt circuit court he meant no disrespect whatever, but refused to obey solely upon the advice of his counsel and the direction of the judge of the Clark circuit court. The Breathitt circuit court considered this response insufficient, and caused a jury to be impaneled to try him for contempt. This jury brought in a verdict fining him $500. On the day of this trial the plaintiff appeared in this court, filed his petition, and obtained a temporary writ of prohibition against the judge of the Breathitt circuit court, prohibiting him from further proceeding to punish him for contempt until the matter could be fully heard by this court. The judge of the Breathitt circuit court, on learning of the temporary writ, entered the following order: "Commonwealth of...