Commonwealth v. Kitchen

• Decision Date: 19 January 1911
• Citation: Commonwealth v. Kitchen, 141 Ky. 655, 133 S.W. 586 (Ky. Ct. App. 1911)
• Parties: COMMONWEALTH v. KITCHEN.
• Court: Kentucky Court of Appeals

133 S.W. 586

141 Ky. 655

COMMONWEALTH v. KITCHEN.

Court of Appeals of Kentucky.

January 19, 1911

Appeal from Circuit Court, Carter County.

Roscoe Kitchen was indicted for perjury, and, from a judgment sustaining a demurrer to the indictment, the Commonwealth appeals. Affirmed.

R. T Kennard, for appellee.

MILLER J.

The appellee, Roscoe Kitchen, was indicted for false swearing after having been legally and duly sworn by H. L. Woods United States commissioner, a person authorized to administer an oath, in a trial before said commissioner in the case of United States v. Stapleton, on a charge of retailing liquors in violation of law. The circuit court sustained a demurrer to the jurisdiction of that court, upon the theory that a state court has no jurisdiction to try a person for the crime of false swearing committed before an officer of the United States.

Section 1174 of the Kentucky Statutes (Russell's St. § 3708) provides: "If any person, in any matter which is or may be judicially pending, or which is being investigated by a grand jury, or on any subject in which he can legally be sworn, or on which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose or give in evidence that which is false, he shall be confined in the penitentiary not less than one nor more than five years." The statute is general in its terms, and is broad enough to embrace a case of false swearing in any tribunal, either state or federal; and if it were an open question it might be one of some difficulty. The situation of the state courts with respect to those cases which were to be submitted to federal jurisdiction by an adoption of the Constitution of the United States--whether the federal jurisdiction was to be exclusive or concurrent with the jurisdiction of the state courts--was carefully considered and discussed before the federal Constitution was adopted.

In the eighty-second number of the Federalist, Hamilton wrote as follows: "The states will retain all pre-existing authorities which may not be exclusively delegated to the federal head, and this exclusive delegation can only exist in one of three cases: Where an exclusive authority is in express terms granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the states; or where an authority is granted to the Union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And, under this impression, I shall lay it down as a rule that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the state courts a right of jurisdiction in such cases can hardly be considered as the abridgement of a pre-existing authority." And, in concluding the discussion of this question, the same distinguished author says "the inference seems to be conclusive that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited," but that Congress, in the course of legislation upon subjects intrusted to it, might commit the decision of causes arising upon any particular regulation solely to the federal courts. In discussing this question in Houston v. Moore, 5 Wheat. 26, 5 L.Ed. 19, Mr. Justice Washington concurred in the foregoing exposition by the Federalist in the following language: "I can discover, I confess, nothing unreasonable in this doctrine; nor can I perceive any inconvenience which can grow out of it, so long as the power of Congress to withdraw the whole or any part of those cases from the jurisdiction of the state court is, as I think it must be, admitted."

This position has been consistently and steadily followed by the federal government. In Judiciary Act Sept. 24, 1789, c. 20, 1 Stat. 73, the exclusive and concurrent jurisdiction conferred on the courts by that act were clearly distinguished and marked. It granted exclusive jurisdiction to the federal Circuit Courts of all crimes cognizable under the authority of the United States, except where the laws of the United States should otherwise provide. Accordingly, Acts Feb. 24 1807, c. 20, 2 Stat. 423, and Act April 10, 1816, c. 44, § 18, 3 Stat. 275, concerning the forgery of the notes of the United States Bank, and Act April 21, 1806, c. 49, 2 Stat. 404, relating to counterfeiters of the current coin of the United States, contained express provisions declaring that nothing therein should deprive the state courts of jurisdiction under the laws of the several states, over those offenses. Prosecutions under state laws for those and similar offenses have been repeatedly sustained. Fox v. Ohio, 5 How. 410, 12 L.Ed. 213; United States v. Marigold, 9 How. 560, 13 L.Ed. 257; Moore v. Illinois, 14 How. 13, 14 L.Ed. 306; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Cross v. North Carolina, 132 U.S. 131, 10 S.Ct. 47, 33 L.Ed. 287. As is well stated by Kent: "Without these provisos, the state courts could not have exercised concurrent jurisdiction over those offenses, consistently with the judiciary act of 1789. But these saving clauses restored the concurrent jurisdiction of the state courts, so far as, under the state's authority, it could be exercised by them. There are many other acts of Congre...