
    Case 20—INDICTMENT
    April 7
    Tully v. Commonwealth.
    APPEAL FROM BOURBON CIRCUIT COURT.
    1. AN ACCESSORY AFTER THE FACT, TO THE CRIME OF MURDER, if found guilty, may be punished by fine and imprisonment, at the discretion of the jury.
    2. The offense of being an accessory to a felony is committed in the county where the substantive accessorial acts are done.
    
      See in opinion of the court a statement and review of the authorities on this question.
    3. When the principal crime is committed in one county and THE ACCESSORIAL ACTS ARE DONE IN ANOTHER, the accessory must be indicted in the county in which the accessorial acts were done. (Act of 1796, 1 Statute Laws, 530; Criminal Code, sec. 15; General Statutes, sec. 5, art. 1, chap. 29.)
    4. So much of the Act of 1796 (1 Stat. Laws, 530) providing that “An accessory to murder or felony committed shall he examined by the court of that county, and tried by the court in whose jurisdiction he became accessory,” as relates to the jurisdiction of the offense has never been expressly repealed.
    5. The Scott Circuit Court had no jurisdiction to indict and try an accessory, after the fact, to a murder committed in that county, for accessorial acts done in the county of Logan.
    
      See in opinion a discussion of the accessorial acts in this case showing that they were done in Logan, and that they were not partly done in Scott.
    6. The plea of the statute of limitations is unavailing when the indictment for a misdemeanor was returned less than one year after the commission of the offense, and the prosecution has been continuously kept up since the return of the indictment.
    When one indictment is dismissed, and the matter is submitted to the grand jury, without releasing or discharging the accused, and a new indictment is found against him, the prosecution has been continuous.
    7. The record of a former trial and conviction was incompetent evidence against the accused, on the second trial for the same offense — the first conviction having been set aside — except as to the plea of the statute of limitations, to show when the prosecution was commenced and that it had been continuous, these being questions of law for the court to decide.
    
      Having erroneously admitted the record to be read against the accused, the court told the jury it was to be considered no further than it applied to the question of limitation. In this the court erred in not excluding the record altogether.
    8. What constitutes accessorial acts. It is sufficient that the alleged accessory had good reason to believe the person aided by him was guilty of the felony, and was fleeing from justice, to render aid or comfort given him unlawful.
    
      It was not necessary to prove that the accessory had actual knowledge of the facts connected with the guilt of the perpetrator of the principal crime.
    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 tobe 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. Si DARNABY, J. B. HUSTON', and CUNNINGHAM & TURNEY FOR APPELLANT.
    1. The offense of being an accessory after the fact, to a murder, is a misdemeanor punishable by fine and imprisonment, at the discretion of a jury (sec. 11, art. 1, chap. 29, General Statutes; sec. 11, art. 1, chap. 28, Revised Statutes), and on the trial the same rules of law which would be applicable in any other case of misdemeanor must control.
    2. The plea of the statute of limitations ought to have been sustained, because more than one year had elapsed after the right of action accrued. (Sec. 23, art. 1, chap. 29, General Statutes; sec. 21, art. 1, chap. 28, Revised Statutes.)
    When the order was made at the September Term, 1875, on the filing of the mandate of the Court of Appeals, dismissing the indictment which was found at the March Term, 1874, the prosecution was ended, and the statute barred any future prosecution under another indictment.
    The prosecution was commenced when the first indictment was found (4 Blackstone, 288-300; Broom’s Com. Law, 988; Dickinson’s Quarter Sessions, 5th ed., p. 168; Cooley’s Con. Lim. 309; 1 Bishop’s Crim. Pro., section 144; 1 Littell, 475; Act of 1796, 2 M. & B. page 1139, section 48; and Act of 1804, 1 Ibid,. 374), and ended when that indictment was dismissed.
    The time between the finding of the first (March, 1874,) and the finding of the second indictment (September, 1875,) should be computed in considering the plea of the statute of limitations.
    The only exception to this rule is to be found in “An act to amend article 1, chapter 28, of the Revised Statutes” (Myers’s Supplement, 163), providing in cases where indictments are lost or destroyed that the “ time intervening between the first and new indictments shall not be computed,” etc. This act is a legislative construction such as is above contended for. (Commonwealth v. Keger, 1 Duvall, 240.)
    3. The Scott Circuit Court had no jurisdiction of the offense alleged in the second indictment found against appellant at its September Term, .1875, because the alleged accessorial acts were not done or committed in Scott County. Although the indictment alleges they were done and committed in Scott County, the evidence shows clearly that they were committed in Logan and not in Scott.
    The offense was not committed partly in Scott and partly in Logan, and therefore sec. 18 of the Criminal Code does not apply, and give jurisdiction to the Scott Circuit Court.
    The common law is imperative on this point, and not in conflict with our statutes.
    “ 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 Statutes 2 and 3, Ed. VI, ch. 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.” (Hale’s Pleas of the Crown, p. 623.) See also Hawkins’s P. C., chap. 25, sec. 25; 1 Bishop’s Crim. Law, 561; 1 Bishop’s Crim. Pro., sec. 58, p. 72; Acts of 1792, 1794, and 1796; 1 M. & B.’s Statutes, sec. 33, p. 530; sec. 5, art. —, ch. 28, Rev. Stat.; secs. 15, 18, Crim. Code.
    4. The offense of being an accessory, after the fact, to a murder, at common law was a felony; under our statute a misdemeanor; but the nature and character of the acts constituting the offense are not defined by the statute; resort must therefore be had to the common law to learn what conduct or acts are necessary to be done to constitute the offense.
    “Accessories after the fact, by the common law, are those who knowing a felony to have been committed by another, receive, relieve, comfort, or assist the felon.” (3 Greenleaf’s Ev., sec. 47, p. 43. See also 1 Bishop on Crim. Law, sec. 487; Roseoe’s Crim. Ev., p. 172; Wharton’s Am. Crim. Law, see. 147.)
    “In order to render a man guilty as accessory he must have notice, either expressed or implied, of the principal having committed a felony.” (Roscoe’s Crim. Ev., p. 173.)
    Such acts as are strictly necessary to constitute the crime must have been performed or done in the county in which the indictment is found. (1 Bishop on Crim. Law, sec. 560.) Counsel argue that the court below erred in not giving and making instructions to conform to principles above set forth, and also in admitting testimony.
    5. The fine of $15,000 was excessive in this case. The proof shows that Tully’s object in purchasing the land was to get a good bargain, to make money, and not to aid Osborn in making his escape.
    THOS. E. MOSS, ATTORNEY-GENERAL, EOR THE APPELLANT.
    1. The prosecution was not barred by the statute. It was commenced with the filing of the first indictment and issuing process thereon.
    In Tully v. Commonwealth (11 Bush, 154) this court remanded the case, not to discharge the defendant, but that the lower court should follow sec. 170 of the Criminal Code, and hold the defendant in custody and submit the ease to another grand jury, in the same manner as if the indictment had been set aside, as provided in sec. 159, Criminal Code.
    The prosecution first instituted gave the court the right to resubmit to the grand jury, because the appellant had not been discharged from the pending prosecution.
    The new indictment, found by the grand jury, was to complete the, pending prosecution for the same offense for which he had been tried and convicted on the defective indictment, and was a continuation of that prosecution. (Cornelius v. Commonwealth, 3 Met. 481; Crim. Code, secs. 274, 160, 161.)
    2. The Scott Circuit Court had jurisdiction. The negotiations of the trade were not all in Logan, but part in Scott County.
    J. LAWRENCE JONES, commonwealth’s attorney, on same side.
    1. As the substantive felony was committed in Scott County, the Scott Circuit Court had jurisdiction to indict appellant as accessory, after the fact, for accessorial acts done in the county of Logan. But it is also insisted that part of the accessorial acts were done in Scott. As to what constitutes a substantive felony and an accessory, and where an accessory may be tried for acts done in another county than that in which the substantive felony was committed at common law before and after — 2 and 3' Edw. YI, ch. 24. (See 1 Bishop’s Crim. Law, 5th ed., pp. 696, 663, 666, 668; 4 Blackstone, Sharswood’s ed., p. 35; 2 Hawkins’s P. C., ch. 25, sec. 36, and ch. 29, sees. 14, 48; 1 Hale’s P. C. 704 and 427, 694; Broom’s Legal Maxims, 7th ed., p. 497; 1 Russell on Crimes, 8 Am. ed., 38; Chitty’s Crim. Law, ed. 1819, p. 733; 1 Wharton’s Crim. Law, 7th ed., 104 note i\ 1 Bishop’s Crim. Pro., 2d ed., 51-2 and 58, 68, 74; 1 East’s P. C. 360, 361; 1 Starkie’s Criminal Pleadings, 2d ed. 12.)
    The act of Dec. 17, 1796, see. 33, providing that an accessory should be “ tried by the court in whose jurisdiction he became accessory ” (1M. & B. 530), remained in force until the adoption of the Revised Statutes. Sec. 33 of the act of 1796 being omitted from the Revised Statutes, must be considered as repealed, unless sec. 6 of art. 1, ch. 88, was intended as a substitute for it. But it will be seen by secs. 17, 18, 21 of the Crim. Code that the commissioners rewrote the entire matters of jurisdiction as contained in articles 1 and 2 of ch. 28 of the Rev. Stat.
    “When the offense is committed partly in one county and partly in another, or the acts or effects thereof, requisite to the commission of the offense, occur in two or more counties, the jurisdiction is in either county.” (Crim. Code, see. 18.) This section was intended to embrace the entire matters in sections 32, 33 of the act of 1796.
    By the authorities above cited, it is clear that the text-writers regard the substantive act and the accessorial acts as parts of the same crime, and if parts, and those parts are committed in different counties, “ the jurisdiction is in either county. ” Tully furnished the fleeing felon money in Logan and thereby enabled him to make good his escape and defeat his trial in Scott. The money furnished was the cause, the defeat of the trial the effect; these having occurred in two counties, “ the jurisdiction is in either county.” (1 Bishop’s Criminal Proceedings, 57, 73, 55, 56, 116; 1 Wharton’s Criminal Law, 601, 602, 280, 281; 4 Blackstone, 306.)
    2. The prosecution under the new indictment was not barred.
    
      Sec. 23, art. 1, chap. 29, General Statutes, providing that “prosecutions by the Commonwealth to recover a penalty for a violation of any penal statute or law . . . shall be commenced within one year after the right to such penalty accrued, and not after, unless a different time is allowed by the law imposing the penalty,” refers to “ actions popular or suits for penalty,” as set forth in sec. 2, art. 22, chap. 28, Revised Statutes,' and in art. 24, chap. 29, General Statutes, and does not apply to corporal penalties, or to high misdemeanors punished by fine and imprisonment, “at the discretion of the jury,” as is an accessory after the fact, under see. 11, art. 1, chap. 29, General Statutes. The term penal statute or law is not synonymous with misdemeanor.
    
    Accessory after the fact to a felony is a common-law offense. The mere act of annexing a penalty to an old law does not make it a local act or “penal statute or law,” but it remains, as our law defines it, “a common-law offense, for which punishment is prescribed by statute.” (Sec. 3, art. .1, chap. 29, General Statutes.)
    “Penal statute or law” refers to statutory, and not to common-law offenses.
    
    Our statute of limitations contemplates a “ prosecution to recover a penalty for a violation of a penal statute or procedure, at the instance of any person to recover any such penalty,” while the article on “ actions popular ” in the Revised and General Statutes is intended to prevent a fraudulent recovery in such cases, and the statute was intended to cover that class of cases only. (3 Blackstone, 161,162; 4 Ibid. 308; 4 Henry, 7c 20; sec. 1, art. 22, chap. 29, General Statutes; sec. 11, art. 1, chap. 29, General Statutes; Bishop’s Crim. Law, 755, 236, 900, 990; Bishop’s Stat. Crimes, 88,114,119,144,155, 2S0,449; Chiles v. Harrison, 1 Littell, 151; M. & B.’s Stat. 1284.)
    The authorities above cited show — ;first, that “ penalty for a violation of a penal statute or law ” refers to penalties created by the penal statutes or laws of the state; and, secondly, that the “ penalty ” referred to was only a pecuniary, and never a partly pecuniary and partly corporal punishment.
    
    The mere change in the phraseology, as in sec. 21, art. 1, chap. 28, Revised Statutes, and sec. 23, art. 1, chap. 29 General Statutes, is not to be construed as a change of law, unless such phraseology evidently purported an intention.to work a change. (Overfield v. Sutton, 1 Met. 621; 1 Wharton’s Crim. Law, 870; 31 Eliz. and 4 Henry VIII; 1 Bishop’s Crim. Law, 5th ed., 755.)
    The prosecutiori was continuous from the finding of the first indictment. If the court had sustained appellant’s motion, in arrest of the first judgment of conviction against him, on the ground that the indictment did not charge a public offense, and was satisfied from the evidence that he was guilty of a public offense, it would, under the injunction of sec. 274 of the Criminal Code, have “ detained him in custody or on bail, in the manner and for the time prescribed in sees. 160 and 161.”
    Upon the filing of the mandate of the Court of Appeals reversing the judgment of the circuit court overruling appellant’s motion in arrest of the judgment against him, it was the duty of the circuit court to do just what it would have done, if the motion in arrest had been sustained in the first place — arrest the judgment, dismiss the indictment, and take the steps directed in secs. 274, 160, 161. The case, upon the filing of the mandate reversing, stood precisely where it did on the original motion in arrest. (Cornelius v. Commonwealth, 3 Met. 484.) The circuit court having detained the appellant on bail, and submitted the case to the grand jury, as required by secs. 274 and 160, and the grand jury having returned a new indictment, the prosecution was continuous, and there was no time or place after the prosecution was first commenced where the statute could find a lodgment.
    The indictment is not the necessary or only commencement■ of a prosecution.
    The statute being once put aside, by the commencement of legal proceedings, whether by warrant or indictment, no matter how defective those proceedings may be, the operation of the statute is suspended until a final verdict is reached upon the merits. (4 Blackstone, 301, 308; Russell on Crimes, 471; Bishop’s Stat. Crimes, sec. 261, n 4; Ibid. 471, n. /; Ibid. 262; 1 Wharton’s Crim. Law, 448, 449; Criminal Code, secs. 274, 160, 161.)
   CHIEF JUSTICE LINDSAY

delivered the opinion op 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 wás 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 A, 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 case of Baron v. People (1 Parker, 246), said: “Our statute (2 R. S. 727, sec. 45) provides that the accessory may be indicted and tried in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county. But there is no statute or rule of law allowing the accessory to be indicted and tried in the county where the principal offense was committed, unless his offense as accessory was committed there.”

If this New York statute was not regarded as but the mere legislative crystallization of the common law as modified by the statute of Edward VI, then the court was evidently of opinion that the common law, after being so modified, did not permit the accessory to be tried in any other county than that in which he committed the unlawful act; and in this conclusion we think it is supported by the decided weight of authority.

As early as 1796 the legislature of this state, following the example of Virginia, and pursuant to the common-law principle embodied in our state constitution, that a person accused of crime shall be entitled to “a speedy public trial by an impartial jury of the vicinage,” provided that “an accessory to murder or felony committed shall be examined by the court of that county and tried by the court in whose jurisdiction he became accessory, and shall answer upon his arraignment, and receive such judgment, order, execution, pains, and penalties as is used in other cases of murder or felony.” (1 Stat. Law, p. 530.)

So much of this statute as relates to the jurisdiction of the offense has never been expressly repealed. To this extent it was excepted from the repealing clause of the act adopting the Revised Statutes (subsec. 5, sec. 1, p. 177, vol. 1, Stanton’s Rev. Stat.), and to the same extent it is in perfect harmony with the 15th section of the Criminal Code of Practice, which provides that “the local jurisdiction of circuit courts and justice’s courts shall be of offenses committed within the respective counties in which they are held.”

It is immaterial whether resort be had to the act of 1796 or the statute of Edward VI, which is common law with us, to ascertain at what place, in estimation of law, the offense of being an accessory to a felony is committed, we find it to be where the substantive accessorial act is done. We may here remark that the adoption of the General Statutes did not change this rule, it being therein provided that “all offenses shall be tried in the courts or by the tribunals of that county or city having jurisdiction of them in which they were committed, except in cases otherwise provided for.” (Chap. 29, art. 1, sec. 5.)

But the Commonwealth contends that the alleged offense of Tully was committed partly in Scott County, and that its court has jurisdiction under section 18 of the Criminal Code, which provides that when an offense is committed partly in one county and partly in another, or where the acts, or effects thereof, requisite to the consummation of the offense occur in two or more counties, the jurisdiction shall be in either county. But, taking the strongest phase of the testimony against Tully, we are of opinion there is no ground for holding that any part of the offense, or any act or the effect thereof requisite to its consummation, occurred in Scott County.

Osborn entered into the negotiations with Tully for the sale of his lands in Logan. Tully, before consummating the-purchase, made a trip to Scott, where the lands are situated, and examined into the title, and ind'uced a resident of Scott to return with him to Logan to identify Osborn, he being unacquainted with him. All this he did in his own interest, and not in the way of assisting the felon to secrete himself from the officers of the law, or to make good his escape from the jurisdiction of the court in which he stood indicted. Tully was no doubt making investigations to satisfy himself that he could make profit out of a contemplated violation of the penal laws; but he was not in Scott to assist, or to procure the means, or to do any thing in the preparation of the plan by which the unlawful assistance was to be rendered to the fleeing criminal.

The acts done in Scott are to be regarded as the evidence of and not as part and parcel of the offense afterward consummated in Logan County. They are not of the same nature with the taking of the impression of a warehouse key in one county and sending it to another to have the false key manufactured; nor of preparing a forged instrument partly in one and partly in another county; nor of standing in one county and shooting a person in an adjoining county. None of Tully’s acts in Scott were strictly necessary to the crime committed in Logan, and therefore they will not support an indictment in Scott on the idea that they or any of them are parts or parcels of that crime. (1 Bishop on Criminal Proceedings, sec. 73.) And as appellant might have been indicted in Logan, and convicted on the proof offered by the Commonwealth, excluding all evidence touching his trip to Scott and his acts in that county, it is manifest none of said acts or their effects were requisite to the consummation of the offense, and this is the second test of jurisdiction prescribed by the 18th section of the Criminal Code. For these reasons the majority of this court are of opinion the court below should have instructed the jury to find for the appellant, when asked to do so, at the conclusion of the Commonwealth’s evidence.

The plea of the statute of limitations was clearly unavailing. The record exhibited shows that the indictment was returned by the grand jury within less than one year after the alleged unlawful acts were done, and although the first indictment was fatally defective, yet the prosecution has actually been on foot and has been continuously kept up since the return of that indictment.

The court erred in permitting the record of the trial had in Scott County to be read to the jury. It is part of the record of this prosecution, and could be used for no other purpose than to show when the prosecution was commenced, and that it had been continuous. These were questions of law for the court to decide, and the substantive rights of the appellant were prejudiced by having the facts of his former trial and conviction proved to the jury. The clerk states in a note that the first verdict and judgment were not read to the jury; but even if this statement be treated as legal evidence to this court of that fact, still there was enough in the record outside of the verdict and judgment to show he had been tried, convicted, and sentenced to punishment in Scott County. It is also true the court told the jury the record was to be considered no further than it applied to the question of limitation; but as it was incompetent and inadmissible, the appellant had the right to have it excluded altogether.

There is no difference of opinion between the members of this court on the question of jurisdiction, except that Judge Pryor is of opinion the acts done by Tully in Scott County bring the case within the provisions of the 18th section of the Criminal Code, and therefore that the peremptory instruction asked by appellant was properly refused, and that in lieu thereof instruction No. 3, asked by him, should have been given.

It is sufficient that appellant had good reason to believe Osborn was guilty of the murder charged, and was fleeing from justice, to render aid or comfort given him unlawful. It was not necessary to prove he had actual knowledge of these facts.

The instructions of the court are based on the theory that all the acts of assistance may have been rendered in Logan County, and still that the Scott Circuit Court has j urisdiction, because the principal offense was committed in that county. They are, for that reason, erroneous and misleading.

Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.  