Hays v. Commonwealth

• Decision Date: 04 December 1890
• Citation: 14 S.W. 833
• Parties: HAYS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

14 S.W. 833

HAYS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 4, 1890

Appeal from circuit court, Washington county.

"Not to be officially reported."

P. B Thompson, Sr., and W. Sweeney, for appellant.

P. W Hardin, for the Commonwealth.

HOLT J.

The appellant, John H. Hays, in a quarrel shot and killed his uncle, Thomas Millburn. The punishment awarded is five years in the penitentiary. A reversal is asked upon several grounds. The one mainly urged is that the evidence does not show that the shooting was done in Washington county, where the case was tried. Section 5, art. 1, c. 29 of the General Statutes provides that all offenses shall be tried in the courts of the county in which they are committed, unless it be otherwise specially provided. The instructions, both as to murder and manslaughter, required the jury to believe from the evidence beyond a reasonable doubt, that the shooting was done in Washington county before they could convict the accused. The only evidence as to it is that it is proven it occurred at the house of John H. Millburn, and he testified "I live in the Hendron district, sixteen miles from Springfield." The trial judge and the jury knew that Springfield was the county-seat of Washington county, and it must be presumed they knew that "Hendron district" was in that county. If it be proven an offense was committed in Frankfort, it is unnecessary for the witness to say that it was in Franklin county. The testimony showing that it occurred in Hendron district was as conclusive and satisfactory, doubtless, to the jury that it had been done in Washington county as if it had been proven that it occurred in Springfield. They no doubt knew the district as a subdivision of the county, and they found the offense had been committed in the county.

Moreover it was the duty of the trial court to know its jurisdiction and, if the offense was committed without it, to send the case to the proper county for trial. The evidence is conflicting as to whether the accused or the deceased sought and provoked the difficulty. One witness says, as the accused with his gun in his hand was passing by the yard in which the deceased was standing, he stopped and looked at him viciously for half a minute. The dying declaration of the deceased puts it at a greater length of time. Upon this state of evidence, the court did not err in giving the fifth instruction, by which the jury were told that, if they believed from the evidence beyond a reasonable doubt the accused did so with the intention of killing the deceased, then they could not...