Tully v. Commonwealth
| Decision Date | 07 April 1877 |
| Citation | 76 Ky. 142 |
| Parties | Tully v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOURBON CIRCUIT COURT.
Henry B. Tully, the appellant, was indicted in the Scott Circuit Court, March Term, 1874, as accessory, after the fact, to the murder of Jerry Burns by Ben Osborn, in Scott County, in August, 1873. At the September Term, 1874, Tully was tried, found guilty, and adjudged to pay a fine of $10,000, and to be confined one hour in the county jail. He made a motion in arrest of judgment, on the ground "that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court." That motion was overruled, and he gave bond superseding the judgment and prosecuted an appeal.
The Court of Appeals, April 17, 1875, reversed the judgment (Tully v. Commonwealth, 11 Bush, 154), with directions to sustain the motion, and to dismiss the indictment.
The mandate of the Court of Appeals was filed in the circuit court, September Term, 1875, and thereupon the following order was made: "The defendant moved the court to arrest the judgment herein and to dismiss the indictment, which motion was heard and sustained, and the judgment ordered to be arrested and the indictment to be dismissed, and ordered the case to be re-submitted to the grand jury now in session;" and on the same day the grand jury returned a new indictment against appellant, and on his motion the venue was changed to Bourbon Circuit Court, where a trial was had, January Term, 1876, which also resulted in a verdict and judgment against appellant, fixing his punishment at a fine of $15,000 and five minutes confinement in the county jail.
This appeal was prosecuted to reverse the judgment of the Bourbon Circuit Court, overruling the appellant's motion for a new trial upon grounds set forth in the opinion of the court.
A. G. RHEA, W. S. DARNABY, J. B. HUSTON, AND CUNNINGHAM & TURNEY FOR APPELLANT.
THOS. E. MOSS, ATTORNEY-GENERAL, FOR THE APPELLANT.
J. LAWRENCE JONES, COMMONWEALTH'S ATTORNEY, ON SAME SIDE.
CHIEF JUSTICE LINDSAY DELIVERED THE OPINION OF THE COURT.
The indictment in this case charges that one Benjamin Osborn, in the county of Scott, on the 10th day of August, 1873, willfully and with malice aforethought, and not in self-defense, killed and murdered one Jerry Burns, by shooting him with a pistol; that said Osborn was indicted therefor, arrested under the charge, and confined in the Scott County jail; that he unlawfully escaped from the custody of the jailer; and that the appellant Tully, knowing all these facts, "did, on the 6th day of March, 1874, in the county aforesaid, willfully and feloniously, and for the purpose of enabling the said Osborn to make good his escape from custody and from answering said crime, furnish said Osborn with money to enable him to escape trial and punishment, and knowing when he did so that said money was procured for said purpose, and would so be used; and did secrete and shield him for said purpose from all detection and arrest, and did conceal his whereabouts from the knowledge of all citizens and officers of the Commonwealth whose duty it was to arrest him, thus knowingly, willfully, and feloniously enabling him to make good his escape, and to go and remain to this day at large."
The facts thus charged constitute the offense of accessory after the fact to the murder of Jerry Burns, and, if guilty, Tully may (under the provisions of section 11, article 1, chapter 28, Revised Statutes) be punished by fine and imprisonment, at the discretion of the jury.
The indictment was returned by the grand jury of Scott County. On motion of the appellant the venue was changed to the Bourbon Circuit, where a trial was had, which resulted in a verdict of guilty and a judgment imposing a fine of $15,000 and confinement in the county jail for five minutes.
On this appeal the first question to be considered is, whether or not the Scott Circuit Court has jurisdiction of the offense. The murder of Burns was committed within the body of that county; but, according to the proof of the Commonwealth, the accessorial acts of furnishing money and assistance to the escaped murderer were done in the county of Logan.
It was a vexed question at the common law, when the principal felony was committed in one county and the accessorial acts done in another, in which, if in either county, the accessory could be tried and punished. On account of the existing doubt in this regard, Lord Hale said, "If a man were accessory before or after, in another county than where the principal felony was committed, at common law it was dispunishable." (H. P. C., vol. 1, p. 623.)
Mr. East, however, was of opinion that "at common law the coroner might, upon view of the body where the fact happened, inquire of all accessories or procurers, though in another county." (1 East's P. C. 360.)
The question was finally settled by section 4, chapter 24, of the statute of 2 and 3 Edward VI, which provided "that where any murder or felony hereafter shall be committed and done in one county, and another person or more shall be accessory or accessories, in any manner of wise, to any such murder or felony in any other county, that then an indictment found or taken against such accessory and accessories, upon the circumstances of such matter, before the justices of the peace or other justices or commissioners, to inquire of felonies in the county where such offenses of accessory or accessories in any manner of wise shall be committed or done, shall be as good and effectual in the law as if the said principal offense had been committed or done within the same county where the same indictment against such accessory shall be found."
This statute applied to and included as well accessories after as before the fact, and fixed the jurisdiction as to either offense by restricting it to the county in which the substantive accessorial acts were done. It is true, Mr. East says that after this enactment "it seems from some authorities that the election to try in either county still continues." (1 East's P. C. 361.) But Mr. Bishop takes a different view (Crim. Procedure, vol. 1, sec. 74), and Lord Hale, in construing the statute, says, "If a man were accessory before or after, in another county than where the principal felony was committed, at common law it was dispunishable; but now, by the statute of 2 and 3 Edward VI, chapter 24, the accessory is indictable in that county where he was accessory, and shall be tried there as if the felony had been committed in the same county; and the justices, before whom the accessory is, shall write to the justices, etc., before whom the principal is attainted, for the record of the attainder." (Hale's P. C., vol. 1, page 623.)
In considering this question the Supreme Court of New York, in the...
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