Runyon v. Morrow

• Decision Date: 18 November 1921
• Parties: RUNYON ET AL. v. MORROW, JUDGE.
• Court: Kentucky Court of Appeals

234 S.W. 304

192 Ky. 785

RUNYON ET AL. v. MORROW, JUDGE.

Court of Appeals of Kentucky.

November 18, 1921

Application by M. T. Runyon and another for writ of prohibition against W. Boyd Morrow, Judge. Application dismissed, and temporary order of prohibition set aside.

L. W Bethurum, of Mt. Vernon, and James Denton, of Somerset, for plaintiffs.

William Waddle and B. L. Waddle, both of Somerset, for defendant.

HURT C.J.

The plaintiffs, M. T. Runyon and L. O. Wilson, who have been indicted in the Pulaski circuit court for a violation of section 1162, Ky. Stats., seek a writ to prohibit Hon. W Boyd Morrow, who is the judge of that court, from proceeding to try them for the crime charged in the indictment. The facts relating to the matter, as averred in the petition, and the exhibits filed therewith, are that they were arrested in Rockcastle county upon a warrant charging them with the crime of grand larceny, committed by stealing an automobile in the latter county. The warrant was issued by the judge of the Rockcastle county court. They were taken before the judge who issued the warrant, and there waived an examining trial, and the judge entered an order requiring them to appear before the circuit court of Rockcastle county, at its next term, to answer any indictment that might be found against them upon the charge, and, if convicted, to render themselves in execution of the judgment, and also by the same order admitted them to bail, and they executed the necessary bonds to assure compliance with the order. Thereafter the grand jury of the Pulaski circuit court returned an indictment against them in which they are accused of the crime of feloniously breaking into a garage, which is alleged to be an outhouse belonging to and used with a dwelling house of J. E Moore, and feloniously taking away therefrom an automobile which was the property of Moore, with the intent to convert it to their own use, and to permanently deprive the owner of the ownership, use, and possession of it. This outhouse was alleged in the indictment to be situated in Pulaski county. It is averred in the petition, and not denied, that the felonious breaking into the outhouse, and the felonious taking and carrying away of the automobile therefrom, with which the indictment in the Pulaski circuit court accuses them, is the same circumstance and the same acts upon which the charge of grand larceny is made against them in the warrant issued by the judge of the Rockcastle county court, and by virtue of which they were arrested and held to answer before the Rockcastle circuit court. The automobile which the indictment accuses them of feloniously taking away from the outhouse of Moore in Pulaski county is the same as the one for the stealing of which they are accused of grand larceny by the proceedings before the county judge of Rockcastle county, and the acts which constituted the felonious taking from the outhouse in the indictment are the same acts which constitute the larceny charged in the warrant. At the time the warrant was issued against them accusing them of grand larceny in Rockcastle county and at the time they were arrested and required by the judge of the Rockcastle county court to execute bond for their appearance to answer before the Rockcastle circuit court, no proceeding of any kind connected with the affair had been instituted against them in Pulaski county, and an indictment has not yet been returned against them in the Rockcastle circuit court for any offense connected with the charge which they were held to answer in that court.

The plaintiffs insist that the Pulaski circuit court is without jurisdiction to try the indictment now pending in that court, because the crime charged in the indictment is the same as that charged in the warrant upon which they were arrested in Rockcastle county, and, they having been arrested before any indictment for the crime was found in Pulaski county, that the jurisdiction to punish them for the crime was fixed in Rockcastle county. In order to uphold the contention that the crime for which they were indicted is the same as that with which they were charged in the warrant, it is insisted that the commonwealth, through its officers, elected to carve out of the acts which constituted the crime, the crime of larceny, and to proceed against them therefor, and, having elected to charge them with larceny, it now cannot proceed against them for any other crime which the acts committed may constitute, because a conviction of larceny would be a bar to their conviction of any other crime, which it would be necessary to prove by the evidence of the same facts which proved the larceny. It is also insisted that, although they may have stolen the automobile in Pulaski county, when they carried it into Rockcastle county the courts of either county were clothed with jurisdiction of the crime, because, having been first arrested in the latter county, at a time when no indictment was pending against them for the crime in Pulaski county, the jurisdiction of the crime became fixed in Rockcastle county, as provided by section 24 of the Criminal Code.

The two statutes which fixes the jurisdiction to punish offenses, with some exceptions to the rule established by them, are section 1145, Ky. Stats., and section 24 of the Criminal Code. The former of these provides as follows:

"All offenses shall be tried in the courts, or by the tribunals, of that county or city having jurisdiction of them in which they are committed, except in cases otherwise provided for."

The latter statute provides as follows:

"If the jurisdiction of an offense be in two or more counties, the defendant shall be tried in the county in which he is first arrested, unless an indictment for the offense be pending in another county."

It will be...