Parker v. Commonwealth

• Decision Date: 16 May 1876
• Citation: 75 Ky. 191
• Parties: Parker v. Commonwealth.
• Court: Kentucky Court of Appeals

75 Ky. 191

Parker v. Commonwealth.

Court of Appeals of Kentucky.

May 16, 1876.

APPEAL FROM WOODFORD CIRCUIT COURT.

J. B. HUSTON, E. C. MARSHALL, W. C. P. BRECKINRIDGE, REDD TWYMAN, For Appellant.

THOS. E. Moss, Attorney General, For Appellee.

JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.

Montgomery Parker stood indicted in the Fayette Circuit Court for the murder of John Wills. He made application therefor and succeeded in having the venue changed to the Woodford Circuit Court. When his case was reached for trial in the last-named court the indictment was quashed. The charge was thereupon laid before the grand jury of Woodford County. That body returned an indictment against him charging the same murder, but alleging that it was committed in Woodford County. The accused was at once put upon trial, and was found guilty of manslaughter, and adjudged to be confined in the penitentiary for the term of three years. He has appealed to this court, and the validity and regularity of the proceedings in the court below are now before us for review.

The jurisdiction and power of the grand jury of Woodford County to find and return the indictment is denied, because of the admitted fact that the killing was done in the county of Fayette.

Article 4, chapter 12 of the General Statutes authorizes a change of the venue in a criminal or penal case, when the defendant shall apply for the change and shall make it appear that he can not have a fair trial in the county where the proceeding is pending. Section 7 of that article provides that "the court to which the removal is so made shall have the same jurisdiction to dispose of the case as the court had from which it was removed; and if the indictment be quashed or a nolle prosequi entered, a new indictment may be found from time to time by a grand jury of the county to which the removal is made, and the same prosecuted until the case is finally disposed of, as though the offense had been committed in that county."

This statute is conclusive of this question if it is not in conflict with certain constitutional provisions embodied in the Bill of Rights. Appellant insists that it is violative of "the ancient mode of trial by jury," and that it provides for depriving a citizen of life, liberty, or property in a mode unknown to "the law of the land."

"The law of the land," as contemplated by the 12th section of the Bill of Rights, and which was in force when the people of Virginia threw off their allegiance to the British crown, and when the first constitution of Kentucky was adopted, authorized a person charged with crime to have a change of the venue, and provided in such a case that he should be tried by other than a jury of the vicinage; and appellant's counsel do not question the validity of the statute to the extent that it requires the trial jury to be made up of competent jurors residing within the body of Woodford County; but they do contend that "the law of the land" and "the ancient mode of trial by jury" secure to the accused the absolute right to demand that he shall not be held to answer a criminal charge except upon a presentment found or an indictment returned by a grand jury of the county in which the offense is alleged to have been committed.

This is undoubtedly a correct statement of the ancient doctrine in its general application. But there were always some exceptions to it growing out of real or supposed necessity.

By the statute of 2d & 3d Edward VI, chapter 24, section 2, it was provided "that when any person or persons hereafter shall be feloniously stricken or poisoned in one county and die of the same stroke or poisoning in another county, that then an indictment thereof founden by jurors of the county where the death shall happen, etc., shall be good and effective in law as if the stroke or poisoning had been committed and done in the county where the party shall die or where such indictment shall be found."

This was a substantial exception to the general rule, and this conclusion can not be successfully combated by assuming that in the cases provided for by the statute the offenses would, in estimation of law, be committed partly in each of the two counties. It is the giving of the blows or the administration of the poison that constitutes the felony, and the dying within a year and a day merely determines the grade of the crime. To support the statute upon the ground that the murder was commenced in the one and completed in the other county is to ignore the reason for guaranteeing to the accused the right to be tried by a jury of the vicinage.

In commenting upon the clause in the Federal Constitution securing this right, Judge Story says: "The object of this clause is to secure the party accused from being dragged to a trial in some distant state, away from his friends and witnesses and neighborhood, and thus to be subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities or prejudices against him. Besides this, a trial in a distant state...