Commonwealth v. Jones

• Court: Kentucky Court of Appeals
• Writing for the Court: O'REAR, J.
• Citation: Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643 (Ky. Ct. App. 1904)
• Decision Date: 01 November 1904
• Parties: COMMONWEALTH v. JONES, Judge.

82 S.W. 643

118 Ky. 889

COMMONWEALTH v. JONES, Judge.

Court of Appeals of Kentucky.

November 1, 1904

"To be officially reported."

Petition for a writ of prohibition by the Commonwealth, by J. M Huffaker, against S.E. Jones, Judge of the Tenth Judicial District. Writ denied.

Aaron Kohn, Loraine Mix, and J. M. Huffaker, for the Commonwealth. Wm. Carroll, Chas. Carroll, Fairleigh, Straus & Fairleigh and H. B. Lee, for respondent.

O'REAR J.

J. M Huffaker, commonwealth attorney for the Thirtieth Judicial District of Kentucky (which is comprised of Jefferson county), has filed a petition in this court against Hon. S.E Jones, Judge of the Tenth Judicial District (in which is situated Bullitt county), praying that a writ of prohibition issue out of this court against the respondent to prevent his taking jurisdiction of the person of one John R. T. Barbour for trial under a charge of murder, said to have been committed upon F. J. Hagan on or about the 12th day of August, 1904. The facts of the homicide are alleged to be that Barbour shot and mortally wounded Hagan in Bullitt county on August 11, 1904, but that Hagan survived until August 12th, when he died from the effects of the wound; that Hagan, after the wound was inflicted, was taken to Louisville, in Jefferson county for treatment at a hospital situated there, and died, as aforesaid, while in Jefferson county. Barbour was arrested in Bullitt county on the 11th of August, 1904, upon a warrant issued by the county judge of Bullitt county, charging him with the felony of malicious shooting and wounding with intent to kill--the shooting and wounding above alluded to.

He was presented before the county judge of Bullitt sitting as an examining court, when he was released upon bail for his reappearance at a later day to answer the charge. Immediately after the death of Hagan, Barbour, who had gone to Louisville, where he had been in business, was arrested in Louisville, charged with the crime of murder, the result of the shooting and wounding recited, and was committed without bail by the police court of Louisville, sitting as an examining court, to answer the charge before the Jefferson circuit court. The Jefferson circuit court has not indicted Barbour for the crime, but the Bullitt circuit court has, and the judge of the Jefferson court, criminal division, has upon the hearing of an application for habeas corpus ordered Barbour remanded to Bullitt county for trial.

The complainant claims that the Jefferson circuit court has the exclusive jurisdiction to try Barbour under the charge of murder. If the Jefferson circuit court has jurisdiction of the offense, and has assumed it, the circuit court of Bullitt county would be without jurisdiction to take and try the defendant upon that charge. The writ of prohibition will issue from this court to prevent the unauthorized exercise of jurisdiction by an inferior court. Const. § 110; Weaver v. Toney, 107 Ky. 419, 54 S.W. 732, 50 L. R. A. 105; Louisville & N. R. R. Co. v. Miller, Judge, 66 S.W. 5, 23 Ky. Law Rep. 1714. The question of jurisdiction of the Bullitt circuit court in the case is the one presented for decision.

At the common law it seems to have been doubtful where the jurisdiction was to try the offense where the stroke or poison was administered in one county and the death resulted in another. To obviate that difficulty, the statute of 2 & 3 Edward VI was passed, which reads as follows: "That when any person shall be feloniously stricken or poisoned in one county and die of the same stroke or poisoning in another county, an indictment therefor found by jurors of the county where the death happened shall be as good and effectual in law as if the stroke or poisoning had been done or committed in the same county where the party shall die, or such instrument shall be so found." After that statute it was settled that the trial was in the county where the death happened. East, 382. As the common law of England and the acts of Parliament made in aid of the common law prior to the fourth year of King James I, which were of a general nature, were by the first Constitution of Kentucky continued in force in this state, and have been since continued in force by the several revisions of the statute law of this state except in so far as modified by our statutes (Parker v. Commonwealth, 12 Bush, 191; Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep. 388), it is argued that the trial must now be in the county where the death happened; that until the death the deed is incomplete.

Although there is eminent authority for the proposition that, where the blow was struck in one county and the death results in another, the offense was punishable as murder in either, we have not found it necessary to carry the inquiry so far as to pass upon that phase of the question. By our statute (section 1147, Ky. St. 1903) it is provided: "If a mortal wound or other violence or injury be inflicted in one county and death ensue in another, the offense may be prosecuted in either." Section 24, Cr. Code Prac., reads: "If the jurisdiction of an offense be in two or more counties, the defendant shall be tried in the county in which he is first arrested, unless an indictment for the offense be pending in another county." Counsel appearing for Barbour, but who brief the case on behalf of respondent,...