Hourigan v. Commonwealth

• Decision Date: 14 September 1893
• Citation: 23 S.W. 355,94 Ky. 520
• Parties: HOURIGAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

23 S.W. 355

94 Ky. 520

HOURIGAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 14, 1893

Appeal from circuit court, Marion county.

Thomas J. Hourigan, convicted of manslaughter, appeals. Affirmed.

Saml. Avritt, S. A. Russell, and Chas. Pattison, for appellant.

W. J Hendrick and H. W. Rives, for the Commonwealth.

HAZELRIGG J.

In June, 1888, the appellant was indicted in the Marion circuit court for the murder of Samuel Hays. At the following term of that court he obtained, in the regular way, a change of venue to Taylor county, and at his first trial there was found guilty, and his punishment fixed at confinement in the state penitentiary for life. He was granted a new trial by that court. The case was brought to this court by the commonwealth, to have the rulings of the lower court reviewed, and the law of the case settled. See Com. v Hourigan, 89 Ky. 305, 12 S.W. 550. Subsequently, two other trials were had in the Taylor circuit court. The juries failed to agree each time. Finally, in April, 1893, on the motion of the defendant, the commonwealth not objecting, the case was remanded to the Marion circuit court. At the succeeding term of the latter court the defendant appeared on the calling of the case, and moved to set aside the order entered at a former term, transferring the cause by change of venue to Taylor county, which was done. His motion for a continuance was overruled, and a trial had, which resulted in his conviction for manslaughter, the jury fixing his punishment at confinement in the penitentiary for 10 years. His motion for arrest of judgment for want of jurisdiction in the Marion circuit court, and for a new trial, on various grounds, being overruled, he has appealed to this court.

The first question is whether the Marion circuit court had jurisdiction of the case. Appellant's counsel contend that the case was properly removed from Marion county, after which the Marion circuit court had no more jurisdiction over it than if it had never been there; that there is no way known to the law by which it could ever get back there, as chapter 12 of the General Statutes provides that but one change of venue shall be granted in any case; that the Taylor circuit court had no authority to set aside the order of the Marion circuit court, sending the case to Taylor county, and the Marion circuit court had no power, in 1893, to set aside its order of transfer made in 1888; that, while the indictment shows that the alleged crime was committed in Marion county, the record also shows that the Marion circuit court, by its order of transfer, has lost all jurisdiction over the case; and that, as consent cannot confer jurisdiction, the consent of the accused to the transfer and trial in Marion does not affect the question. With these views we cannot concur. The motion of the defendant was simply to remand the case to the court of original jurisdiction. We think the Taylor circuit court had jurisdiction over this motion. It had the right to pass on it. The statute has no application, and presents no bar to the jurisdiction of the court in passing on the motion to remand. The object of the law in providing for a change of venue is to afford the accused a trial in a community where the state of public opinion is such as that he can have a fair hearing, or is not such as to prevent it. Ordinarily, he accomplishes this result by filing his petition, and supporting it by the affidavits of others. But he may obtain the same result without observing these forms, the commonwealth consenting. Whatever method is observed, he is but selecting a tribunal in which to be fairly tried. These formalities provided by the...