Commonwealth v. Apkins

• Citation: 146 S.W. 431,148 Ky. 207
• Parties: COMMONWEALTH v. APKINS.
• Decision Date: 07 May 1912
• Court: Court of Appeals of Kentucky

146 S.W. 431

148 Ky. 207

COMMONWEALTH v. APKINS.

Court of Appeals of Kentucky.

May 7, 1912

Appeal from Circuit Court, Jessamine County.

Peter Paul Apkins was indicted for murder. From a judgment sustaining a demurrer to the indictment, the commonwealth appeals. Affirmed.

James Garnett, Atty. Gen., and B. A. Crutcher, of Winchester, for the Commonwealth.

Alpha Hubbard, of Lexington, for appellee.

LASSING J.

Peter Paul Apkins was indicted by the grand jury of Jessamine county for the willful murder of Lizzie Young Apkins by administering poison to her and also by striking her. While the indictment charged that the offense was committed in Jessamine county, it was conceded by the commonwealth that the evidence would show that the blows were struck and the poison administered in Cincinnati, Ohio; and therefore the case was submitted on an agreed state of facts to the court with a view of determining whether or not the Jessamine circuit court had jurisdiction. Upon consideration the court entered the following order: "It is admitted by the attorney for the commonwealth that the blows inflicted and poison administered that caused the death of Lizzie Young Apkins were inflicted and administered to the said Lizzie Young Apkins in the city of Cincinnati, in the state of Ohio, but the death resulted from the same in the state of Kentucky within a year and a day thereafter. In view of said admission by the attorney for the commonwealth, it is the opinion of the court that this court does not have jurisdiction and for that reason the demurrer is sustained, to which the commonwealth excepts and prays an appeal to the Court of Appeals, which is granted."

The commonwealth admits that if the agency or means used, to wit the poison which appellee is alleged to have employed to do death, did all of its active work while the deceased remained in the state of Ohio, the offense would in legal contemplation have been committed in that state, and that the courts of this commonwealth would have no jurisdiction. It is further admitted that it is not enough to confer jurisdiction upon the courts of this commonwealth that death, resulting from an unlawful act, occurs in this state. But it is insisted that where one puts into operation a force in another state, having in view an unlawful purpose, and that such force does not manifest itself upon the person affected until such person has come within the jurisdiction of this state, but that it does thereafter manifest itself in this state by producing death to the one affected thereby, then the party setting said force in operation has committed a crime in contemplation of law within this commonwealth.

Applying this principle to the facts in the case at bar, it is the contention of the commonwealth that although appellee administered the poison in Cincinnati, in the state of Ohio inasmuch as it did not take effect and produce death until after the victim came to Kentucky, in legal contemplation the poisoning was in effect, if not in fact, done in this state and the courts of this commonwealth have jurisdiction. It is admitted that no authority directly in point has been found in support of this theory. But it is urged that the case of Jackson v. Commonwealth, 100 Ky. 239, 38 S.W. 422, 1091, 18 Ky. Law Rep. 795, 66 Am. St. Rep. 336, which was cited with approval in Commonwealth v. Parker, 108 Ky. 679, 57 S.W. 484, 22 Ky. Law Rep. 368, illustrates and supports this position. In that case two young men administered cocaine to Pearl Bryan in Cincinnati, Ohio, and, believing her to be dead, brought her over into Kentucky to a point back of Newport, and there severed her head from her body. It developed that she was not dead, so, of course, death was not due to the cocaine administered to her, although that of itself might later have caused death. But the immediate cause of death in her case was the severing of her head from her body. Hence the crime for which the defendants in that case were tried was the murder of this unfortunate girl in Kentucky, and not for the taking of her life by administering cocaine in Ohio.

Reliance is also had upon the case of Commonwealth v. Van Tuyl, 58 Ky. (1 Metc.) 1, 71 Am. Dec. 455. Van Tuyl was indicted for obtaining money by false pretense. It developed upon the trial that, while in the state of Ohio with a negro whom he represented to be a runaway slave belonging to him, he sold the negro to one Jenkins for $500, which was to be paid when they arrived in Kentucky. After arriving in Kentucky, Jenkins paid the $500 and took a receipt, in which Van Tuyl covenanted that he was the lawful owner of the negro, who was a slave for life. It developed that the negro was not a slave, but free. The lower court instructed the jury that, if the negro was sold and delivered to Jenkins in the state of Ohio, the defendant could not be convicted in this state. In reversing this ruling upon appeal here the court said: "The false pretense employed is only the means by which the offense was perpetrated. *** The crime is not committed until the money is obtained. The fraud in this case was concocted in the state of Ohio, and the representations were there made which were designed to render it successful, but it became mature and took effect in this state; for here the scheme was consummated, the sale evidenced by writing, and the money obtained from the person defrauded. The crime was therefore committed in this state, and not elsewhere, and the defendant was properly indicted therefor in the county of Carroll, where the money was paid to him."

The gravamen of the offense in that case was obtaining money by false pretense. The transaction was had in Kentucky, although the scheme for carrying it out, as said by the court, was laid in Ohio.

In Commonwealth v. Ball, etc., 126 Ky. 542, 104 S.W. 325 31 Ky. Law Rep. 887, this court had under consideration a question involving facts just the reverse of those here presented. In that case Ball and others were indicted by the grand jury of Bell county for killing Meade Cottrell. It was shown that the shooting occurred in this state, but that, after Cottrell was shot and wounded, he was put upon an engine and carried across the state line into Tennessee, where he died....