Clemons v. Stoll

• Decision Date: 12 January 1923
• Citation: 197 Ky. 208,246 S.W. 810
• Parties: CLEMONS ET AL. v. STOLL, CIRCUIT JUDGE, ET AL.
• Court: Kentucky Court of Appeals

246 S.W. 810

197 Ky. 208

CLEMONS ET AL. v. STOLL, CIRCUIT JUDGE, ET AL.

Court of Appeals of Kentucky.

January 12, 1923

Proceedings by Elkhanah Clemons and others against R. C. Stoll, Judge of Fayette Circuit Court, and another, for a writ of prohibition. Writ denied, and petition dismissed.

A Floyd Byrd, of Lexington, for plaintiffs.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for defendants.

MOORMAN J.

The petitioners, Elkhanah Clemons, Nathan Clemons, Wilson Clemons, and Henderson Combs, instituted this proceeding in this court against R. C. Stoll, judge of the Fayette circuit court, and W. W. Williams, judge of the Knott circuit court to stay proceedings on a bench warrant issued on an indictment returned in the Fayette circuit court, wherein the petitioners are charged with the murder of Henry Noble. The ground of the proceeding is that the Fayette circuit court has no jurisdiction of the offense with which petitioners are charged, and that, unless prohibited by this court, the defendants will proceed to take the petitioners to Fayette county and to try them on the indictment pending in that county without authority or jurisdiction so to do.

Answer has been filed by the commonwealth of Kentucky, denying that the Fayette circuit court is without authority to try the petitioners, and alleging that such proceedings as have been had in the Knott circuit court, with regard to the prosecution of petitioners for the murder of Henry Noble, were fraudulently procured and had at the instance of petitioners for the purpose of defeating the rightful jurisdiction of Fayette county. This affirmative defense has been traversed, and on the issues thus made proof has been taken.

In July, 1921, Green Watkins and Henry Noble were mortally wounded in Knott county. Watkins died in that county, but Noble was taken to Lexington, where he died on July 29th. Immediately thereafter a warrant was issued from Fayette county and placed in the hands of the sheriff of Knott county for the arrest of petitioners on the charge of murdering Henry Noble. It is shown in the proof that the killing of Watkins and Noble occurred at a point near the Breathitt county line a day or two before the convening of the Knott circuit court, and that friends of the petitioners visited the commonwealth attorney of the Knott circuit court and urged him to cause indictments to be returned against petitioners in that court at the term then in session agreeing to surrender the petitioners to the officers of the law upon the return of the indictments; that warrants for the arrest of petitioners had been issued by the authorities of Breathitt county, and the commonwealth attorney, believing that there was danger of violence if those warrants were executed, agreed to procure indictments in Knott county; and that the friends of petitioners went before the grand jury of that county and assisted in procuring an indictment. Before the return of the indictment, however, the petitioners were arrested by the sheriff of Knott county, who at that time had in his possession three warrants for their arrest, one from Fayette county, one from Breathitt, and one from Knott county. The arrest was made at the solicitation of the friends of the petitioners on the warrant from Knott county, which was procured from the county judge by the sheriff on his way to the place designated by the friends of petitioners as the place where they would surrender. After the arrest, the petitioners were taken to the Knott county jail, and shortly thereafter an indictment was returned against them for the murder of Green Watkins and Henry Noble. They were also indicted in the Fayette circuit court for the murder of Henry Noble. Their cases in the Knott circuit court were continued until the April term, 1922, of that court, when on motion made by the commonwealth attorney the indictment was quashed and the cases resubmitted to the grand jury. The grand jury returned another indictment against them, charging them with the willful murder of Green Watkins, but made no charge against them for the killing of Henry Noble; it evidently being the view of the prosecuting attorney that for the latter offense the jurisdiction was in Fayette county. A bench warrant having been issued from Fayette circuit...