Smith v. Commonwealth
| Decision Date | 17 February 1894 |
| Citation | 95 Ky. 322,25 S.W. 106 |
| Parties | SMITH v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Bell county.
"Not to be officially reported."
Thomas Smith was convicted of murder, and appeals. Reversed.
J. M Unthank and Warren Montfort, for appellant.
W. J Hendrick, for the Commonwealth.
On this appeal from a judgment of the Bell circuit court, consigning the appellant to the penitentiary for life for the murder of John McKnight, in Perry county, the following facts appear from the record, upon which the jurisdiction of the trial court is denied: On August 25, 1890, the appellant, with a number of others, was indicted for the murder of John McKnight in the Perry circuit court; and thereupon the attorney for the commonwealth, under the provisions of an act of the general assembly approved in 1890, giving the commonwealth the right to change the venue of a case when there existed a state of lawlessness on the part of the friends and sympathizers of the accused preventing a fair trial, filed his written statement, and the cause was transferred to the Clark circuit court. Thereafter the defendant in that indictment (the present appellant) appeared in the Clark court, and executed bond for his appearance there, as required by law. The regularity of this transfer, and the constitutionality of the act under which it was made, were determined by this court in the case of Com. v Davidson, 15 S.W. 53; the appellee in that case Davidson, being one of the defendants in the indictment with Smith, the present appellant. On March 17, 1893, and while the former indictment was still pending and undetermined in the Clark circuit court, the grand jury of Perry county again indicted the appellant, Smith, for the murder of John McKnight, and, notwithstanding his protest against the jurisdiction of the court, made by demurrer, plea of former jeopardy, and his affidavit, and the record showing that the Perry circuit court had been divested of its jurisdiction over the case by the transfer mentioned, the court was about to proceed to a trial of the case, when the appellant procured, by proper steps under the statute, a change of venue to the Bell circuit court. In the latter court the same questions were again raised as to the jurisdiction of the court, and the foregoing facts were shown by copies of the records from the Perry and Clark circuit courts. The court refused to set aside the indictment, overruled the demurrers, general and special, and the objections of the appellant to the jurisdiction, etc., and the case proceeded to trial under the protest of the appellant, who pleaded former jeopardy, and set forth the foregoing facts; and, on the trial, the...
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United States v. Cessa
..., 73 Mo. 695, 700 (Mo. 1881), overruled on other grounds by State v. Roy , 83 Mo. 268 (Mo. 1884) ; but see Smith v. Commonwealth , 95 Ky. 322,25 S.W. 106, 107 (1894) (holding that transferor county loses "all jurisdiction over the subject-matter of the indictment," including the ability to ......
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Stovall v. State
...one charging the same offense. We think the right to return the subsequent indictment exists independent of any statute. In Smith v. Comm., 95 Ky. 322, 25 S. W. 106, accused had been indicted in Bell county and the venue changed to Clark county. A subsequent indictment for the same offense ......
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State v. Tucker
... ... toward the prosecution of the defendant after the change of ... venue had been taken to Cass county is Smith v. Com ... 95 Ky. 322, 25 S.W. 106. As this seems to be a leading case, ... we have not only examined the decision with care but we have ... In that case the defendant had been ... indicted in the Perry county circuit court. A change of venue ... had been taken by the commonwealth under an act approved in ... 1890, transferring the cause to the Clark county circuit ... court. While that indictment was pending the grand jury ... ...
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Johnston v. State
...county loses jurisdiction as completely as if the indictment had never originated in that county. The facts of the case of Smith v. Commonwealth (Ky.) 25 S. W. 106, are very similar to the facts of the present case. The Court of Appeals of Kentucky there held that "a court, after change of ......