Keefe v. District Court of Carbon County

• Decision Date: 21 March 1908
• Citation: 16 Wyo. 381,94 P. 459
• Parties: KEEFE ET AL. v. DISTRICT COURT OF CARBON COUNTY
• Court: Wyoming Supreme Court

94 P. 459

16 Wyo. 381

KEEFE ET AL. v. DISTRICT COURT OF CARBON COUNTY

Supreme Court of Wyoming

March 21, 1908

APPLICATION for writ of prohibition. The proceeding was instituted on behalf of Frank J. Keefe to restrain the district court of Carbon County from proceeding to try him upon a second information for murder in the first degree, the case upon the first information having been transferred to Albany County on change of venue, and being there pending. The plaintiffs in the proceeding were Frank J. Keefe, and the State of Wyoming on the Relation of said Frank J. Keefe. The defendants were the District Court of Judicial District No 3, or the Third Judicial District, of the State of Wyoming within and for the County of Carbon, and David H. Craig Judge of said Court. The material facts are stated in the opinion.

H. V S. Groesbeck and W. R. Stoll, for plaintiffs.

After a change of venue is properly granted and the cause thereupon transferred, the court granting the change loses all jurisdiction of the case, and the court to which the cause is transferred takes sole and exclusive jurisdiction thereof. (R. S. 1899, Sec. 4289; 12 Cyc., 253; 4 Ency. Pl. & Pr., 470 471, 486, 487; People v. Suesser (Cal.), 75 P. 1093; Frazier v. Fortenberry, 4 Ark., 162; State v. Twiggs, 60 N. C., 142; Bowles v. State, 37 Tenn. 360; State v. Swepson, 81 N. C., 571; State v. Rayburn, 31 Mo.App. 385; Woodring v. State (Tex.), 24 S.W. 293; In re Est. of Whitson (Mo.), 1 S.W. 125; State v. Ledford (N. C.), 45 S.E. 944; State v. Lay (Mo.), 29 S.W. 999; Ammons v. State, 9 Fla., 530; Goodhue v. People, 94 Ill. 37.)

And in a criminal case the court granting the change loses all jurisdiction not only over the indictment or information transferred, but over any other founded on the same transaction and charging the same offense, whether filed at the same or a subsequent time. (R. S. 1899, Sec. 4289; Johnston v. State (Ga.), 45 S.E. 381; Smith v. Com. (Ky.), 25 S.W. 106; 1 Whart. Am. Cr. L., 521; State v. Tisdale, 19 N. C., 159.) The Missouri cases of State v. Billings, 140 Mo. 193; State v. Paterson, 73 Mo. 695, and State v. Smith, 71 Mo. 45, do not controvert this proposition. They construe a statute peculiar to that state. The proposition contended for does not prevent the prosecution from presenting further indictments for the same offense, but that right cannot be resorted to as a subterfuge, nor can it prevail to compel a trial for the same offense upon more than one indictment, nor to oust a court of its exclusive jurisdiction once attached. (1 Arch. Cr. P. & P., 336-337; 1 Bish. C. L., 1014; 1 Bish. Cr. Proc., 870; 1 Whart. Am. Cr. L., 547; Com. v. Drew, 3 Cush., 279; State v. Tisdale, supra; Dutton v. State, 5 Ind. 533; Com. v. Murphy, 11 Cush., 472; Com. v. Berry, 5 Gray, 93; U. S. v. Herbert, 5 Cranch C. C., 87; People v. Van Horne, 8 Barb., 158; Roby v. State (Neb.), 85 N.W. 61; Stuart v. Com., 28 Gratt., 950; Doyal v. State, 70 Ga. 134; Hardin v. State, 4 Tex.App. 355; Cock v. State, 8 Tex.App. 659; State v. Gut, 13 Minn. 315; Richardson v. State, 2 Tex.App. 322; Irwin v. State (Ga.), 45 S.E. 48; State v. Boulter, 5 Wyo. 236; State v. Klugherz (Minn.), 98 N.W. 99.)

Two offenses with which a particular individual is charged are identical when they, in substance, charge one and the same offense committed by one and the same person at one and the same time by one and the same instrument or means and in one and the same transaction. The offense charged in these two informations is clearly the same. The joining of another defendant in the second information does not render the offense charged a different one. (Cock v. State, 8 Tex.App. 659; 12 Cyc., 280, 281; 1 Bish. Cr. L., 1048-1052.)

The application of the defendant for bail under the second information after the plea to jurisdiction was denied did not confer jurisdiction to try him thereon pending the case upon the first information in the other court.

Whenever a plea to the jurisdiction of the court is once made and insisted upon by the defendant, any subsequent appearance to further carry on the case as required under the procedure of the court does not make a general appearance or waive defendant's right to still question such jurisdiction, and especially is this true where at all times, even after his plea is denied, he continues to object to the jurisdiction. (3 Cyc., 504-509; Allen v. Miller, 11 Ohio St. 374; Hagood v. Dial, 43 Tex. 625; State v. Shipley (Md.), 57 A. 12.)

Keefe cannot now be tried in any court for the offense charged, since he was not brought to trial before the end of the second term of the court having jurisdiction after the filing of the information. (R. S. 1899, Sec. 5382; Const., Art. 1, Sec. 10; 1 Bish. Cr. Proc., 951; 21 Ency. Pl. & Pr., 958; Robinson v. State, 12 Mo. 592; Fanning v. State, 14 Mo. 386; In re Spradlend, 38 Mo. 547; State v. Cox, 65 Mo. 29; State v. Marshall, 115 Mo. 383; State v. Steen, id., 474; State v. Riddle (Mo.), 78 S.W. 606; State v. Ashcraft (Mo.), 8 S.W. 216; State v. Wear, 145 Mo. 163; Kibbler v. Com., 94 Va. 804; Ex parte McGehan, 22 Ohio St. 442; State v. Garthwaite, 23 N.J.L. 143; State ex rel. v. Larson (N. D.), 97 N.W. 537; In re McMicken (Kan.), 18 P. 473; State v. Dewey, 73 Kan. 735; People v. Morino (Cal.), 24 P. 892; In re Begerow, 133 Cal. 349; State v. Fasket, 5 Rich. L. (S. C.), 255; State v. Kuhn, 154 Ind. 450; Guthman v. People, 203 Ill. 260; People v. Heider, 225 Ill. 347; Dublin v. State, 126 Ga. 580.) Upon this question the confinement of Keefe in the penitentiary under a conviction for another offense is immaterial. The fact that he was in the penitentiary did not prevent his being brought to trial for another offense. (2 Bl. Com. (Church's Ed.), 686-688; 4 Bl. Com. (Chase's Ed.), 1034-1039; 1 Abb. L. Dict., 105-106; 1 Bish. Cr. L., 953, 966-970; 21 Cyc., 353; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors (Cal.), 3 P. 597; People v. Flynn (Utah), 26 P. 1114; Clifford v. Dryden (Wash.), 72 P. 96; State v. Connell, 49 Mo. 282; R. S. 1899, Sec. 3699; L. 1905, Ch. 6.)

Prohibition is the proper remedy. (Dobson v. Westheimer, 5 Wyo. 34; State ex rel. v. Dist. Court, id., 227; State ex rel. v. Ausherman, 11 Wyo. 410; State ex rel. v. Court, 12 Wyo. 547; State ex rel. v. Court, 13 Wyo. 184.) The mere fact that the questions might be reviewed on a proceeding in error is not sufficient to justify a refusal of the writ, nor the fact that the court below held that it had jurisdiction. (Cases supra, and 2 Bailey on Jur., 445-481; Brown on Jur., 175.)

N. R. Greenfield, for defendants.

Where a change of venue is granted upon an information or indictment, the venue is changed only as to that indictment or information, and the court to which the change has been granted has exclusive jurisdiction over it, but that fact in no way precludes the filing of a new information or indictment. Such new or second information or indictment must be filed and presented in the county where the offense is alleged to have been committed, and if the defendant should still desire a change of venue, he must apply anew therefor. (State v. Goddard, 162 Mo. 198; State v. Anderson, 96 Mo. 241; State v. Bartlett (Mo.), 71 S.W. 41; State v. Vinso, 171 Mo. 576; Vaugh v. State, 32 Tex. Cr., 407; Luttrell v. State, 40 Tex. Cr., 651; Hardin v. State, 22 Ind. 347; Dunton v. State, 5 Ind. 533; Winn v. State, 82 Wis. 571.) The court granting a change of venue in a criminal case, therefore, loses jurisdiction only as to the particular indictment upon which the change was granted. To all intents and purposes each separate indictment or information is a separate and distinct case, to which the defendant must plead and take any other steps necessary to his defense. And generally not only may the prosecution file as many indictments or informations as may be deemed advisable, but the pendency of a first is no bar nor a ground for a plea in abatement to a second.

When the jurisdiction of an inferior tribunal depends upon the existence of certain facts, an adjudication by such tribunal of the existence of such facts is conclusive of the question of jurisdiction, and if reviewable at all, must be reviewed by appeal or error. (Mau v. Ausherman, 11 Wyo. 432; Wells on Jur., 61; 1 Bailey on Jur., 13, 14; Brown on Jur., 18.) The same questions are here raised that were presented by Keefe's plea to the jurisdiction in the district court, and there decided adversely to him. Until that decision is reversed on appeal it must stand as the law of the case, and there would seem to be no ground for prohibition. Keefe, therefore, has a plain, adequate and speedy remedy by proceedings in error. (State v. Court, 5 Wyo. 232; Walcott v. Wells, 21 Nev. 47; High. Ex. Leg. Rem. (3d Ed.), 770, 771.) He failed to avail himself of his remedy after the overruling of his plea to the jurisdiction; but waived whatever rights he had by applying for bail, and demanding a speedy trial. We do not wish to be understood as contending that consent can generally confer jurisdiction of the subject matter, but the matter of venue is a privilege which may be waived, while other rights of the defendant, such as being confronted by witnesses, presence of accused, right to be heard by counsel, etc., are more in the nature of absolute rights, conferred not alone in the interest of the accused, but as essentials to be observed by the state, in order that substantial justice may be rendered. The matter of the time and place of trial are not in the nature of absolute rights of the accused and may be waived by him.

The statute relating to the discharge of a prisoner when not brought to trial within the time provided is not imperative and mandatory. Under a related section the court is given a large discretion in the...