Gearhart v. Commonwealth

112 S.W. 572, 129 Ky. 458, 1908 Ky. LEXIS 172

• Court: Court of Appeals of Kentucky
• Decided: September 25, 1908
• Status: Published

Opinion

Opinion of the Court by

Ym. Rogers Clay, Commissioner —

Reversing.

Appellant, Peter Gearhart, was indicted by the grand jury of Carter county for the offense of selling spirituous, vinous and malt liquors in that county in violation of the local option laws. "When the case was called for trial at the special term of the Carter circuit court, it developed, upon the hearing that the offense was committed in Elliott county. Thereupon the commonwealth’s attorney moved the court to transfer the case to the Elliott circuit court for trial, which was done over the objection of appellant. The case was not recommitted to the grand jury of Elliott county, but appellant was tried on the original indictment by the Carter county grand jury. The jury returned a verdict of guilty, and fixed appellant’s punishment at a fine of $60 and 20 days in jail. This appeal involves two questions: (1) Was the case properly transferred from the Carter circuit court to the Elliott circuit court? (2) Was it proper to try appellant on the indictment returned in the Carter circuit court.

Section 230 of the Criminal Code of Practice is as follows: “If, during the trial, it shall appear that the offense was committed out of the jurisdiction of the court, but within the jurisdiction of some other court of this State, the court shall stop the trial, discharge the jury, and take the proceedings in the case directed in sections 166 and 167.” While it is true that sections 166 and 167 apply only to felony cases, there is nothing in section 230 that limits its application to such cases. We therefore conclude that it applies alike to felonies and misdemeanors. .It follows that it was proper for the Carter circuit court to transfer the case to the Elliott circuit court.

But was it proper for the Elliott circuit court to try appellant on the indictment returned in the Carter circuit court? The indictment in question charged appellant with the offense of violating the local option laws by selling spirituous, vinous, and malt liquors in Carter county. Manifestly, therefore, the Elliott circuit court could not try a man for an offense committed in Elliott county under an indictment for an offense committed in Carter county. In the first place, the Elliott circuit court would have no jurisdiction of the offense if committed in Carter county. In the second place, proof to the effect that an offense was committed in Elliott county would not sustain an indictment charging an offense in Carter county. We therefore condude that the action of the Elliott circuit court in trying appellant upon the indictment in question was erroneous. Instead of trying him upon that indictment, he should have been held to bail to answer for his appearance to an indictment by the Elliott circuit court.

For the reasons given, the judgment is reversed and cause remanded, with directions to hold appellant to bail to answer for his appearance to an indictment by the Elliott circuit court.