Fain v. Commonwealth

Decision Date20 December 1900
Citation59 S.W. 1091,109 Ky. 545
PartiesFAIN et al. v. COMMONWEALTH. [1]
CourtKentucky Court of Appeals

Appeal from circuit court, Fayette county.

"To be officially reported."

Joe Fain and others were indicted for breaking into a school house and stealing therefrom property of value, and they appeal. Affirmed.

C. C Calhoun, for appellants.

R. J Breckinridge and C.J. Whittemore, for appellee.

PAYNTER J.

The appellants were indicted by the grand jury of Fayette county for unlawfully, forcibly, and feloniously breaking into and entering the school house of common school district No. 30 and stealing therefrom an organ, the personal property of Mrs. Lizzie Wallace, etc. A trial of the indictment resulted in a conviction. They moved the court for a new trial, which was granted. Numerous reasons were assigned for granting it but there do not appear from the record the considerations which influenced the court to do so. Subsequently, on motion of the attorney for the commonwealth, it was ordered that the indictment be quashed, and the cause referred to the grand jury then in session. It returned another indictment charging them with stealing from a school house, and in describing the offense the indictment contains language as follows: "That said Joe Fain and Larkin Fain *** did unlawfully and feloniously break into and take out of and from the school house of common school district No. 30, of Fayette county, known as the 'Kirklevington School House,' one organ, belonging to and kept in said school house," etc. It is insisted that the first trial put the appellants in jeopardy, and therefore the plea of former conviction should have been sustained in the prosecution under the last indictment. It is no longer an open question in this state that the attorney for the commonwealth, with the permission of the court, may, before jeopardy attaches, dismiss an indictment against a defendant, and have the grand jury reindict him. Williams v. Com., 78 Ky. 93. Section 270, Cr. Code Prac., reads as follows: "The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to in evidence or in argument." In Com. v. Arnold, 83 Ky. 1, this court held the legislature had the right to prescribe the terms upon which one who has been convicted of crime may have a new trial, and that section...

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11 cases
  • The State v. Larimore
    • United States
    • Supreme Court of Indiana
    • February 16, 1910
    ...... (1903), 69 Ohio St. 247, 69 N.E. 433; People v. Parker (1906), 145 Mich. 488, 108 N.W. 999;. State v. Vaughan (1870), 29 Iowa 286;. Commonwealth v. McCormick (1881), 130 Mass. 61, 39 Am. Rep. 423; State v. Copeland [173. Ind. 454] (1877), 65 Mo. 497; Hovey v. Sheffner (1907), 16 Wyo. 254, ...392;. Kelly v. United States (1885), 27 F. 616;. Thompson v. Commonwealth (1894), (Ky.), 15. Ky. L. Rep. 838, 25 S.W. 1059; Fain v. Commonwealth (1900), 109 Ky. 545, 59 S.W. 1091. . .          It. follows that the court erred in overruling appellant's. demurrer ......
  • Blanton v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 28, 1958
    ...Haskins v. Commonwealth, 1 S.W. 730, 8 Ky.Law Rep. 419; Wells v. Commonwealth, 6 S.W. 150, 9 Ky.Law Rep. 658; Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091, 22 Ky. Law Rep. 1111; Newton v. Commonwealth, 197 Ky. 496, 247 S.W. 707; Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d In Hoskins v......
  • Foster v. Commonwealth of Kentucky, 15047.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 27, 1962
    ...Appeals has held that the situation is the same as if no offense had been committed and that no double jeopardy exists. Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091; Ward v. Commonwealth, Ky., 128 S.W. 72; Hoskins v. Commonwealth, 152 Ky. 805, 154 S.W. 919; Newton v. Commonwealth, 197 Ky......
  • McCreary v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • February 26, 1915
    ...... the indictment is a trial de novo. Wells v. Commonwealth,. 6 S. W. 150, 9 Ky. Law Rep. 658; Haskins v. Commonwealth, 1 S. W. 730, 8 Ky. Law Rep. 419. [ 1 ] ; Mount v. Commonwealth, 2. Duv. 93; White v. Commonwealth, 9 Bush, 178;. Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091, 22. Ky. Law Rep. 1111; Ward v. Commonwealth, 128 S.W. 72. . .          Further. following the principles stated, this court has often held. that, where a new trial has been granted, the first. indictment may be dismissed and a new ......
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