Imagens das páginas

19 L. ed. 257, and citing Owen v. Howard | Georgia Masonic Ins. Co. v. Daris, 63 Ga. Ins. Co. 87 Ky. 571, 10 S. W. 119.

471. And there may be others. Smith v. The gist of the reasoning advanced in the Herd, 110 Ky. 56, 60 S. W. 841, 1121, is Riddlesbarger Case, and in the text-books overruled. Lee v. Union Cent. L. Ins. Co. which have adopted it, is that it is essential 22 Ky. L. Rep. 1712, 56 S. W. 724, will not to the insurer to have the claim promptly longer be considered authority on this point. presented and adjusted, as by a great lapse We conclude that the provision in the of time the circumstances of the transaction policy that no suit should be maintained are apt to fade from the memory of disinter- upon it, unless begun within one year from ested witnesses, or the evidence will be lost, the death of the insured, was in contravenand the insured or beneficiary, being on the tion of the public policy of this state, and ground, would have an undue advantage. | is void. It follows that the judgment of which might be turned into the fabrication the circuit court, having been in conformity of evidence and the like to support unmeri- to this conclusion, is affirmed, with damages. torious claims. The argument, when presented to the legislature, might justify that

Paynter, J., dissents. body's enacting a general law of limitation

A petition for rehearing having been filed, for this class of contracts different from O'Rear, J., on February 15, 1905, handed that applied to ordinary written obligations. down the following additional opinion: But it is not a good reason why the statute

The policy provides that any indebtednow in force and applicable to such con

ness of the assured to the company will be tracts—the statute of fifteen years (Ky. deducted from the face of the policy if the Stat. 1903, $ 2514)-should not be applied latter becomes a claim against the comby the courts. Beside, the condition of the

pany. The note for $396.80 and interest law in this state does not warrant the ap- from December 15, 1897, spoken of in the plication of the reasoning. For here we opinion, ought to have been credited on the enforce the provision of the contract re

sum payable to appellee under the terms quiring that the insured or beneficiary of the policy. For the error in failure to do furnish promptly notice and proof of loss as

so, the judgment must be reversed, and a condition precedent to his right to sue.

cause remanded, to enter judgment on the This puts before the insurer the fact that it verdict subject to the credit herein indicatis claimed to be liable on the policy, and

ed. The opinion in other respects is adthe circumstances and names of witnesses hered to. by which it is proposed to establish it.

On March 9, 1905, a further opinion was Ætna L. Ins. Co. v. Milward, 26 Ky. L. Rep. 589, 68 L. R. A. 285, 82 s. w. 364. handed down by Hobson, Ch. J., to the efIt is then open to the insurer to protect it- fect that, upon withdrawal of the transcript self, if it deems the claim unfounded in from the clerk's office, he could not tax merit, in two ways: (1) To proceed under costs as for two copies, although it was the Code to perpetuate its evidence, so that, used by both parties, which throws no light whenever the action may be brought against

on the main proposition in the case, and is

therefore omitted. it, it has lost nothing by deaths and removals of witnesses; (2) or it may sue at once to be relieved of the liability claimed,

A. H. HARGIS et al. on the ground that it has been discharged, or that the contract has terminated, or for

Watts PARKER, Judge, etc whatever reason, and it may thus at once force a trial of the matter, getting such

(........Ky.........) advantages as accrue from that fact.

1. The supreme court may exercise its While recognizing the great ability of the justices of the supreme court, and the learn- perior over inferior tribunals, see also, in this

NOTE.-As to superintending control of suing and wisdom of the courts of final resort series, State ex rel. Fourth Nat. Bank v. Johnof the states that have adopted a different son, 51 L. R. A. 33, and note, and Re Barber policy, yet we feel constrained to declare Asphalt Paving Co. 67 L. R. A. 761. that the public policy of Kentucky is a mat

As to jurisdiction of crime begun in one state

or county and consummated in another, see ter peculiarly for her own construction and

also, in this series, Watt v. People, 1 L. R. A. application. The reasoning applied to up- 403 : Ev parte McNeely, 15 L. R. A. 226; and hold the distinction made in favor of insur- Graham v. People, 47 L. R. A. 731. ance contracts to us is unsatisfying, while As to crime committed by shooting across the objections to the principle on which it

state boundary, see State v. Hall, 28 L. R. A. rests are insuperable. The supreme courts

As to effect of prosecution in one county of two other states have come to the same

to bar prosecution in another county, where of. conclusion at which we have arrived. Barnes fense was partly consummated in both, see Colo v. McMurtry, 29 Neb. 184, 45 N. W. 285, and man v. State, 64 L. R. A. 807.

59, note.





constitutional power to prevent an, magistrate to grant the bail; and even iminferior court from exceeding

plored the Breathitt grand jury to indict jurisdiction, before the question of juris- them,still it would and could have been diction has been presented to such court, where the situation disclosed is such that to

no legal fraud on the commonwealth, or on take the ordinary course would be of itself the jurisdiction of Fayette county. to subject the complaining party to irre. The justice, having jurisdiction of the mediable loss.

charge, had the undoubted right to admit to 2. The supreme court has jurisdiction bail.

to intervene by a writ of prohibition to stay an inferior court from proceeding Com. v. Nimmo, 7 Ky. L. Rep. 286; Vias v.

Com. v. Kimberlain, 6 T. B. Mon. 43: out of its jurisdiction, under a constitutional provision empowering it to issue such writs Com. 7 Ky. L. Rep. 742; 3 Enc. Pl. & Pr. p. as may be necessary to give it a genera! 200. control of inferior jurisdictions.

While the court would not sustain the A constitutional right to trial by plea of action pending where the penalty jury of the vicinage does not prevent was wholly inadequate, yet in a case where the trial taking place in either county, in the penalty is fixed by law, and “the ofcase a crime is begun in one and consum

fender cannot lessen it by misrepresentamated in another.

tion,” it will be upheld. The arrest


instigation, for the purpose of preventing a

Hamilton v. Williams, 1 Tyler (Vt.) 15. trial elsewhere, of persons accused of If the jurisdiction is concurrent in two crime, by a magistrate of the county where or more counties, an election must be made the commission of the crime is commenced, by somebody; and it is clear, if the commonand binding them over to await the action of wealth has not made such an election the acthe grand jury, will not prevent proceedings against them in the county where the crime cused may do so. is consummated, under a statute providing State v. Casey, 44 N. C. (Busbee, L.) 209; that, if the jurisdiction of any offense be in State v. George, 53 Ind. 434. two counties, the accused shall be tried in

The justice of the peace residing nearest the county in which he is first arrested.

the courthouse had jurisdiction to issue the 6. accessory before the fact to a

warrants of arrest and take bail bonds. murder in which the wound is inAicted in one county and the injured

Act 1886, § 3, Carroll's Crim. Code, § 71; person dies in another may be tried

Act 1886, § 8, Carroll's Crim. Code, $ 71; in either county, although his acts are Com. v. Kimberlain, 6 T. B. Mon. 43; Creekcommitted only in the former, under statutes more v. Com. 5 Bush, 312; Com. v. Nimmo, providing that accessories shall be liable to 7 Ky. L. Rep. 286; Vias v. Com. 7 Ky. L. the same punishment as principals, and may Rep. 742: 3 Enc. Pl. & Pr. p. 200; State v. be prosecuted jointly with them, and, in case of a crime committed jointly in two counties George, 53 Ind. 434. the prosecution may be in either.

The section of the Kentucky statutes

(1147) under which jurisdiction is claimed (March 10, 1905.)

for Fayette is unconstitutional.

Parker v. Com. 12 Bush, 194; 1 Bishop, A ,

to restrain defendant from taking juris- 1 Mackey, 498, 47 Am. Rep. 247; Bill of diction of an indictment charging petitioners Rights, § 11; 1 Ky. Stat. 1796, Littell, p. with murder. Denied.

472; 1 Bishop, Crim. Proc. $ 57, subsec. 2; The facts are stated in the opinion. State v. Carter, 27 N. J. L. 499; Riley v.

Messrs. J. B. Hanna, John M. Steven- State, 9 Humph. 646. son, and J. J. C. Bach, with Messrs. J. Messrs. J. R. Allen, N. B. Hays, C. H. Smith Hays, Lewis McQuown, and Morris, J. R. Morton, A. F. Byrd, and Hazelrigg & Hazelrigg, for petitioners: B. R. Jouett for respondent.

The jurisdiction of this court attached under the averments of the petition in this O’Rear, J., delivered the opinion of the

court: Com. v. Jones, 26 Ky. L. Rep. 867, 82 S. The respondent the · Honorable Watts W. 643; Const. § 110; Weaver v. Toney, Parker is the judge of the twenty-second 107 Ky. 419, 50 L. R. A. 105, 54 S. W. 732 ; judicial district of Kentucky, comprising Louisville & N. R. Co. v. Miller, 112 Ky. Fayette county. The plaintiffs were indicted 464, 66 S. W. 5.

by the grand jury of Fayette county, If every friend that the plaintiffs have charged with the murder of James Cockrill. in this case had gone to the magistrate at A bench warrant issued upon the indictthe instance of the plaintiff's, and implored ment, and was about to be served upon the him, in advance of any actual proceeding plaintiffs in this proceeding, when they apin Fayette county, to make the affidavit, to peared in this court, and asked that a writ issue the warrant in this case; and implored of prohibition issue against the respondent the sheriff to execute it; and implored the Parker to prevent' his taking or exercising


jurisdiction over the persons of the plain- question of its jurisdiction passed on by tiffs. The facts upon which the application that court. (2) That under the statutes is based are that James Cockrill was shot of this state Fayette and Breathitt counand wounded in Breathitt county, this state, ties have concurrent jurisdiction of the ofin July, 1902. He was immediately con- fense charged in the indictment, and that veyed to Fayette county for treatment of the county where proceedings were first behis wound, but shortly thereafter died in gun takes the exclusive jurisdiction. (3) Fayette county. He was shot and killed, That proceedings were first begun in Fayit is alleged, by Curtis Jett, who has since ette county. (4) That the alleged probeen tried and convicted of the crime, and ceedings in Breathitt county previous to the sentenced to death. Jett was indicted by indictment returned in January are a myth; the grand jury of Breathitt county, though or, if in fact had, were the result of colluhe was tried in Harrison county upon a sion between the accused and the officers, inchange of venue. The claim of the plaintiffs cluding the examining magistrate, were oris that, as alleged by the state, they were iginated for the fraudulent purpose of preaccessories before the fact to the murder, venting any prosecution, and were never inand that their acts, if done as claimed, were tended to have been made public except as committed wholly in Breathitt county; that a defense to the jurisdiction of Fayette on December 3, 1904, warrants were issued county. against the plaintiff's by one James W. Ed- The 110th section of the Constitution of wards, a justice of the peace for Breathitt Kentucky reads: “The court of appeals shall county, charging them with this murder. have appellate jurisdiction only, which shall They were arrested upon the warrants, car- be coextensive with the state, under such ried before the magistrate, and were by him restrictions and regulations, not repugnant held over to answer such indictment as the to this Constitution, as may from time to grand jury might find against them, and time be prescribed by law. Said court shall were in the meantime released upon bail. have power to issue such writs as may be On January 24, 1905, the Fayette county necessary to give it a general control of ingrand jury returned the indictment char- ferior jurisdictions.” The last sentence was ging the plaintiff's with the same murder not in any previous Constitution of this in that county, and it is under this last state. From that fact, and inasmuch as it named indictment that the Fayette court is had been held under the former Constituproposing to take jurisdiction of the plain. tions that this court might issue the comtiffs and to try the case. Since January 24, mon-law writ of prohibition against any in1905, and in fact since the original petition ferior court proceeding out of its jurisdicwas filed in this court, the grand jury of tion (Arnold v. Shields, 5 Dana, 18, 30 Am. Breathitt county has been convened in reg. Dec. 669; Sasseen v. Hammond, 18 B. Mon. ular session, has examined into the alleged 673), provided this court had appellate murder of James Cockrill, and has returned jurisdiction of the subject-matter, it was in that court several indictments charging said that the last sentence of § 110 of the the plaintiff's with the murder of Cockrill. Constitution “seems to have been intended Upon these facts the plaintiff's assert that

to give to the court of appeals the authorities of Breathitt county first took plenary power to issue writs in every case jurisdiction of the offense and of the per- when necessary to give it general control sons of the accused, and thereby affixed the of inferior jurisdictions.” Hind man exclusive jurisdiction to try them in the Toney, 97 Ky. 413, 30 S. W. 1006. Ordicourts of that county. It is also contended narily, this court might well refuse to issue by plaintiff's that the provision of the stat- the writ before the question of jurisdiction utes and Code of this state allowing a

had been made in the lower court, for it trial to be had in either county where any might be presumed that until that court had part of an offense may have been committed proceeded out of its jurisdiction, or had is violative of the Constitution.

evinced by an order court that it proposed Judge Parker disclaims any intent or pur- doing so, it would not, or, at any rate, that pose in the proceeding other than to dis- the complainant not injured, nor charge his official duty as he sees it. The threatened with injury till then. But this commonwealth of Kentucky, at the request is not necessarily so in all cases. If the of the attorney general and of the common situation disclosed be such as that to take wealth's attorney of the twenty-second | the ordinary course would be of itself to judicial district, was allowed to be made a subject the complainant to irreparable loss, party defendant, and has defended this suit. the writ should issue without the objections The contentions of the commonwealth are as having been made below. The matter of follows: (1) That the writ should not be judi co should yield to substantial issued until the petitioners have first ap- personal rights of litigants, such as a sacriplied to the circuit court and had the 'fice of their liberty. If it be true that the



Fayette court is proceeding without juris- | Constitution, before the provision found in diction, it is not substantial justice that it $ 11 of the present Constitution was adoptshould be allowed to take the bodies of the ed. Com. v. Davidson, 91 Ky. 162, 15 S. W. complainants, confine them in jail without 53. As it is admitted that the shot that bail, as it might do at its discretion, subject killed Cockrill was fired in Breathitt counthe parties to enormous expense in defending ty, and that his death from the wound octhe case, even if it went no further than a curred within one year and a day thereafter trial of the question of jurisdiction, and say in Fayette county, they each had concurto them, “Your remedy is solely by appeal rent jurisdiction of the crime. Manifestly, if you have been wronged.” We think the the courts of two counties could not try section of the Constitution, though it be the same defendants for the same offense. deemed only declaratory of the common law There must be a time when the jurisdiction on the subject, confers the power and juris- of one county becomes exclusive and that of diction on this court to intervene by the writ the other county is lost. Section 24, Crim. of prohibition to stay the inferior courts of Code Prac., is: “If the jurisdiction of an the state from proceeding out of their juris- offense be in two or more counties, the dediction. It may issue whether or not there fendant shall be tried in the county in which is an appeal. Whether it ought to issue in he is first arrested, unless an indictment for advance of the decision of the lower court, the offense be pending in another county.” or whether the party will be left to his rem- A literal application of the last section edy by appeal, will depend on whether that might lead to absurdities certainly never remedy is given, and whether it is adequate contemplated in the purpose of its enactor not. This court will be slow to use the ment. It was so held in Massie v. Com. 90 writ where there is an appeal, but its valu. Ky. 485, 14 S. W. 419. Horse stealing is able office to the citizen who is being op punishable by statute in the county where pressed by unlawful assumption of judicial the horse may be stolen, or in any county authority will not be limited by set rules. into which it may be carried. Massie took It is believed the general principles regulat- a horse in Montgomery county, and carried ing the use of this writ are so well estab- it into Bourbon. At the instance of the lished and understood that it is unnecessary Montgomery county authorities, and before to further define them.

an indictment in that county or elsewhere, It is not an open question in this state they caused him to be arrested in Bourbon, whether an offense committed partly in two and brought back to Montgomery, for trial, counties may be tried in either. Whatever where he was convicted. He relied on $ 24, may have been the common-law rule, though Crim. Code Prac., in bar of the jurisdiction it seems to have been substantially as now of the Montgomery court. It would seem declared by our statute, legislation in this that literally his objection was well taken. state has settled it, unless it be said that But this court said: “This provision was the Constitution is violated thereby. Section not inserted in the Code for the benefit of 1147, Ky. Stat. 1903, provides: "If a mortal the criminal, but to prevent a conflict of wound, or other violence or injury, be in- jurisdiction in cases where it belonged to flicted, or poison be administered, in one more than one county.” It is conceded, as it county or corporation, and death ensues in must be under the statute quoted, and the another, the offense may be prosecuted in decisions of this court, if adhered to, that, either.” And § 21 of the Criminal Code of where two or more counties have concurrent Practice provides: "If an offense be commit- jurisdiction of an offense committed partly ted partly in one and partly in another in each of them, no substantial legal right county, or if acts and their effects consti- of the accused can be invaded whether one tuting an offense occur in different coun- or the other takes cognizance of the matter. ties, the jurisdiction is in either county.” So long as the accused is not put in jeopardy If such was the common law—as we think by the proceedings in both counties, it canit was—“a jury of the vicinage,” at com- not be the subject of complaint from him mon law, was a jury selected from the neigh- which of them takes the jurisdiction and borhood of the crime, which might be either proceeds with his trial, so long as only one county where it was in part committed. does so. Com. v. Jones, 26 Ky. L. Rep. 867, 82 S. W. The fact may be accepted as established 643. It has always been understood that by the proof in this case that Magistrate Edthe right to trial by a "jury of the vicinage” wards issued warrants against plaintiffs on was subject to certain necessary exceptions, December 3, 1904, charging them with the such as changes of venue, and the like. Par. murder of James Cockrill. It may also be ker v. Com. 12 Bush, 191; Adkins v. Com. accepted as established, for the purposes of 98 Ky. 539, 32 L. R. A. 108, 33 S. W. 948; this hearing, that the accused were arrested Smith v. Com. 108 Ky. 53, 55 S. W. 718. or voluntarily surrendered themselves to the This was held to be the law under the old 'custody of the magistrate, who signed an order committing them to the circuit court | public concern than any individual. The of Breathitt county for examination of the courts which administer the law may protect charge by the grand jury of that county, and their own jurisdictions from machinations, that they executed bonds for their appear- from palpable subterfuges intended merely ance before that court. It is contended for to defeat their jurisdiction. The sovereignty the commonwealth, though,—and this is the of the law depends upon the power of main question presented for decision,—that the courts to maintain the integrity of their these proceedings are void. For the plaintiffs jurisdiction against mere devices that would the argument is that, whatever may have defeat them. Judgments obtained by extrin. been the motives of the officers of Breathitt sic fraud ought not to bind anybody not a county, or however their action might have party to the fraud. They ought to be and been induced, the fact is that, having juris- are subject to impeachment either by direct diction to do what was done, the accused are or collateral attack. This is so although the actually bound by the proceedings, and, the court rendering them had jurisdiction of the law's machinery being set in motion, under subject-matter. Grignon v. Astor, 2 How. $ 24, Crim. Code Prac., the jurisdiction of 319, 11 L. ed. 283; United States v. ThrockBreathitt county becomes exclusive. The morton, 98 U. S. 68, 25 L. ed. 96; Cole v. court has come to the conclusion, upon the Cunningham, 133 U. S. 112, 33 L. ed. 541, evidence before it, that the arrests of the 10 Sup. Ct. Rep. 269; Brunk v. Means, 11 B. plaintiffs in Breathitt county were procured Mon. 214; Talbott v. Todd, 5 Dana, 190. In upon their own instigation, or that of some Carrington v. Com. 78 Ky. 83, the accused of them acting for all, with the design not was indicted for a violation of the liquor to have a trial of the charge there or else-laws. His offense was a misdemeanor. A where, but as a cloak to prevent the trial statute provided that, "whenever any person elsewhere. If such be not the fact, the plain- shall be lodged in jail, in default of bail, tiffs are peculiarly unfortunate in the mat- being charged with a misdemeanor," whether ter of certain coincidences shown in the under an indictment or not, the judge of proof, as well as certain discrepancies be the quarterly court, the circuit court not between the record of the squire's proceedings ing in session, had jurisdiction to try the and the admitted truth. Being of this opin- case. The defendant surrendered to the jailion as to the facts, the question recurs, Do er, failed to give bond, and was brought bethe proceedings in Breathitt before the ex. fore the quarterly court, tried, convicted, amining magistrate confer exclusive juris- and fined. Notwithstanding, the circuit diction of the plaintiffs on the courts of that court proceeded afterwards to try him under county? A judgment of a court may be a the same indictment, rejecting his plea of punishment or it may be a protection. It former conviction in bar. This court said: may or may not be a bar, according to “The circuit court properly refused to perwhether he who relies on it is in a position mit its jurisdiction to be ousted, and to alto do so. If it be obtained by fraud, the low the prisoner, by a device so transparent, one procuring it ought not to be permitted to choose the tribunal in which he would be to use it as a protection. That would be tried. A judgment of acquittal thus proto allow one to profit by his own fraud, cured was not a bar, and was properly diswhich is a doctrine repugnant to the law. regarded.” Plaintiff's seek to distinguish and wholly untenable by any kind of right Carrington's Case from this one upon the thinking It is said that the 'commonwealth suggestion that the quarterly court had not has acted in the matter in Breathitt jurisdiction of the case, because Carrington through her legally constituted officers, was not in fact in jail, but was simply in the whose authority is as complete to bind the custody of the jailer. The court, however, commonwealth as is that of the officers of did not rest its decision upon that feature Fayette or any other county. If the com

of the case.

It was referred to only as inmonwealth is bound, it is upon principles dicating a lack of good faith in the matter. analogous to agency that he who sets another The court said: “The evidence in this case to do his business is bound by such agent's shows that the prisoner never was committed acts within the scope of his authority; to jail, nor was he in good faith committed which is as it should be. But there is a to the custody of the jailer.” From this it necessary exception to that rule, which is, if appears that, had the defendant been in good the agent, in fraud of his principal, colludes faith committed to the custody of the jailer, with his opponent, so that, instead of acting it would not have been necessary to have for his principal, he becomes the tool or ac- gone through the idle form of locking and complice of the opponent, then the princi-unlocking the jail door. Emphasis was laid pal ought not to be bound by his agent's upon the lack of good faith in the defendacts; nor is he. As between two persons, ant’s surrendering himself to the jailer's this is undeniably the law. The state will custody in this language: “Whatever was not be given less consideration in matters of done toward bringing the case within the

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