
    Cash 55 — INDIOTMENT
    February 17.
    Smith v. Commonwealth.
    ARRISA I. J.'I'.OM "I! KT..1, CIRCUIT COURT.
    Whore an indictment found in the Perry Circuit Court was, upon motion-by the Commonwealth for a change of venue, transferred from that court to the Clark Circuit Court, the jurisdiction of the Perry Circuit Court over the subject matter was thereby divested, and a subsequent indictment found in that court against defendant for the same offense- and all proceedings under it were void, the case never having been remanded from the Clark Circuit Court; and this is true, although at the time of the trial under the second indictment, the indictment in the Clark Circuit Court had been filed away with leave to redocket, as-that court may yet redocket the case and proceed to try the defendant.
    J. M. insmiAhm and WARREN MONTPORT fob arpullant.
    1. The act of May 26, 1890, providing for a change of venue by the Commonwealth, is not unconstitutional. (Com. v. Davidson, 12 Ky. Raw Rep., 767.)
    2. The Perry Circuit Court divested itself of jurisdiction by the change of venue to the Clark Circuit Court, and could not again acquire jurisdiction except by the case being remanded to it by that court, which was never done. (Hourigan y. Com., 15 Ky. Raw Rep., 265.)
    W. J. H15N PRICK, Attornisy-Genebai., for aritoi.t.ek.
    This is one of the cases where it is to the interest of tlie Commonwealth that the law be vindicated by"a reversal. Tlie jurisdiction has always been in the Clark Circuit Court since the chango of venue to that court.
   JTJDGTí HAZELKIG-G-

delivered the opinion op the court.

Oil 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, aud thereupon the attorney for the Commonwealth, under the provisions of an act of the General Assembly, approved May 26, 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 Commonwealth v. Davidson, 91 Ky., 162, the appellee in that case, Davidson, being one of the defendants in the indictment with 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 tbe court, made by demurrer, plea of former jeopardy, and bis affidavit and tbe record showing that tbe Perry Circuit Court bad been divested of its jurisdiction over tbe case by tbe transfer mentioned, the court was about to proceed to a trial of tbe case when tbe appellant procured, by proper steps under tbe statute, a change of venue to the' Bell Circuit Court. In tbe latter court the same questions were again raised as to tbe jurisdiction of the court, and tbe foregoing facts were shown by copies of the records from tbe Perry and Clark Circuit Courts. Tbe court refused to set aside tbe indictment, overruled the demurrer, general and special, and tbe objections of tbe appellant to tbe jurisdiction, etc., and tbe case proceeded to trial under tbe protest of tbe appellant, who pleaded former jeopardy and set forth tbe foregoing facts; and on tbe trial tbe evidence of the former indictment for tbe same offense, and tbe pendency of tbe same case in Clark, etc., were shown, and tbe court was asked to instruct tbe jury to find tbe defendant not guilty. Tbe court overruled bis motions and plea and instructed the jury that, if they believed from tbe evidence that the defendant bad theretofore been acquitted of tbe offense charged in tbe indictment by a judgment of tbe Clark Circuit Court, and if they further believed from the evidence that said court bad jurisdiction of bis person and of tbe offense charged in tbe indictment, then they should acquit tbe defendant. And further, that it was admitted b3r tbe Commonwealth, and must be taken as true, that the defendant was the same person who was indicted in tbe Perry Circuit Court at its August term, 1890, for tbe murder of John McKnight, and who was then being tried for tbe murder of tbe same John McKnight, and that both indictments charged the same offense. The court also gave the usual instructions as to murder, manslaughter, etc.

It appears from the copy of an order of the Clark Circuit Court, filed by the appellant on his motions in this case, and as evidence on the trial, that the Commonwealth’s attorney, in the judicial district embracing Clark Comity, had filed a written statement on October 4,1893, upon which the court ordered that the indictment against the defendant Smith — the present appellant — be filed away, with leave to redocket the same upon motion of the Commonwealth’s attorney.

It is apparent that the finding of the second indictment, while the first one remained undisposed of, and all the proceedings thereafter had on it, are quite out of the ordinary.

It is clear that by its transfer of the case to the Clark Circuit Court the Perry Circuit Court lost all jurisdiction over the subject-matter of the indictment. The proceedings, therefore, thereafter had on the second indictment were void for want of jurisdiction in the court in which they were had, and this is true of the attempted trial in the Bell Circuit Court.

On motion of the defendant in the Clark Circuit Court, the Commonwealth not objecting, the venue might have been changed back to Perry, as decided in Hourigan v. Commonwealth, 94 Ky., 520, but not otherwise. The so-called trial in Bell was, in legal contemplation, no trial at all, and the same would have been true of every attempted trial in Perry on this second indictment. The Clark Circuit had, at the finding of this second indictment, and at the time of the trial in Bell, full and complete jurisdiction of the case, and upon redocketing it miglit yet proceed to try the appellant for the murder of John McKnight.

These principles are fundamental and elementary. It is but just to say that the learned Attorney-General, who, while quick enough always zealously to prosecute the just pleas of the State, yet concedes this case to be one “where it is to the interest of the Commonwealth that the law be vindicated by a reversal.”

The judgment is therefore reversed, with directions to quash the indictment and discharge the appellant.  