Woods v. Commonwealth

• Decision Date: 28 January 1941
• Citation: 147 S.W.2d 690,285 Ky. 275
• Parties: WOODS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

147 S.W.2d 690

285 Ky. 275

WOODS v. COMMONWEALTH.

Court of Appeals of Kentucky

January 28, 1941

Appeal from Circuit Court, Clay County; Franklin P. Stivers, Judge.

John Woods was convicted of manslaughter, and he appeals.

Affirmed.

William Lewis & Son, of London, for appellant.

Hubert Meredith, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.

STANLEY Commissioner.

The appeal is by John Woods from a conviction of manslaughter and sentence to 21 years imprisonment for the killing of Robert Asher on August 6, 1939. The grounds submitted as requiring a reversal of the judgment are absence of jurisdiction of the Clay circuit court; the admission of incompetent evidence and error in giving an instruction on conspiracy and qualifying the self-defense instruction.

The indictment returned by the grand jury of Clay county was of John, Ted and Warren Woods. The defendants filed a petition for a change of venue and supported it with an affidavit to the effect that they could not obtain a fair trial in Clay county because there had recently been a great many homicides in the county, involving many people, and that the citizens who were not involved in those homicides were biased and "against killings." The commonwealth's attorney also asked for a change of venue on the ground that a state of lawlessness existed in the county. It was thereupon agreed that the venue of the case be changed to Jackson county. When it was called the Jackson circuit court sustained the defendant's motion to set aside the indictment because of error in the forming and summoning of the grand jury. Section 158, Criminal Code of Practice. On motion of the Commonwealth's attorney the case was then remanded to the Clay circuit court and the papers transferred thereto. When the case was called for trial there the Clay circuit court sustained a motion of the Commonwealth's attorney to set aside the indictment upon the same grounds the defendants had already had it done in the Jackson circuit court, and referred the case to the grand jury. A new indictment was returned. When called for trial the defendants pleaded that the Clay circuit court had no jurisdiction of the case and moved that the second indictment be set aside. Their plea and motion were overruled, a severance was granted and the defendant John Woods placed on trial.

The appellant contends the Clay circuit court had been divested of jurisdiction by the transfer to Jackson county and that the new indictment must have been returned in that court. It is provided by section 1117 of the statutes that the court to which a case has been removed shall have the same jurisdiction to dispose of it as the court from which it came and that if the indictment be quashed a new one may be found "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."

Undoubtedly as appellant submits, when a case has been removed the court from which it came has been divested of jurisdiction and another indictment found in that county against a defendant for the same offense is a nullity. Smith v. Commonwealth, 95 Ky. 322, 25 S.W. 106, 15 Ky.Law Rep. 637. That case had been remanded by the Perry circuit court to Clark county and while it was there pending a new indictment was returned by the grand jury of Perry county. We held that indictment void because the Perry circuit court had lost jurisdiction. The facts of the case at bar are materially different. After the indictment had been set aside by the Jackson circuit court, the commonwealth's attorney, as authorized by section 1121 of the statutes, moved that the case be remanded to Clay county and his motion was sustained. The appellant maintains that the action is void because the accused had no notice of the motion according to the terms of section 1121 of the statutes which provide that 10 days' notice in writing shall be given the defendant. The statute has the added provision, "unless notice be waived in open court by the defendant or defendants." The order of the Jackson circuit court recites, "This cause coming on for trial on today, the commonwealth announced 'ready for trial'; whereupon came the defendants by their counsel and produced and filed their motion to quash the indictment returned herein by the grand jury of Clay county." The order then sustains the motion and continues with the recitation that on motion of the commonwealth's attorney the prosecution is remanded to the Clay circuit court. It is apparent that the defendants were then present in court with their counsel and made no objection of record to the remand. They thereby waived notice of the motion and are to be deemed to have consented to the retransfer. It was after the remand and while the case was pending in the Clay circuit court--not in the Jackson circuit court--that the new indictment was returned. The court properly overruled the plea to the jurisdiction.

The appellant's brother, Ted Woods (called "Bear") on that Sunday morning had been in a card game called "skin," at Ralph Walker's place with Robert Asher and others. They were drinking. Woods quit the game saying that Asher had "got his last dollar off of me." Asher said, "Me to." A quarrel and fight followed. Woods pulled out a knife and Asher a pistol; but they were disarmed. As Woods left the place he said, "Boys, I will be back later." Within an hour Ted Woods and his two brothers, the appellant, John Woods, and Warren Woods were seen together going in the direction of Walker's place. John had a shotgun. When they arrived, or shortly thereafter, Asher was sitting in front of the place and Ted and Warren Woods came up and the former asked, "Robert, are you as game as you were awhile ago?" Asher responded, "Go away, I don't want any trouble with you." Thereupon they all drew their pistols. There is some evidence that Asher cursed Ted Woods and the latter said, "I don't allow any body to treat me the way you have, Rob." At that time John was standing on the other side of the door. When the fight started, the several witnesses ran to cover. The commonwealth's evidence shows that Asher's pistol had not been fired. Ted...