125 Ky. 821 | Ky. Ct. App. | 1907
Lead Opinion
Opinion op the Court by
Denying writ.
By petition in the name of the Commonwealth, on relation of the'Attorney General and the Commonwealth’s attorney for the Twenty-third judicial district, this court is asked to compel, by the writ of mandamus, the defendant, William Carnes, special judge of the, Breathitt circuit court, charged with the duty of presiding on the trials of' James Hargis and others under indictment for the murder of D. B. Cox, to enter of record in the Breathitt circuit court the following order: “Breathitt Circuit Court. Commonwealth of Kentucky, Plaintiff, v. James Hargis, Defendant. Order. "Whereas in the order made in the Breathitt circuit court in the above-styled case and others changing the venue of said cases to the Elliott circuit court, an appeal from said order of transfer was prayed and granted to the plaintiff, but by oversight or inadvertence the order as entered of record fails to show that such was done, it is now ordered nunc pro tunc and for the purpose of completing said order of transfer that an appeal from same was and is prayed by the plaintiff, and that the same was and is granted.” It is averred in the petition that the prosecutions against Hargis and others for the murder of D. B. Cox were illegally transferred, and the venue changed from the Breathitt
The defendant demurred to the petition, and also' filed answer. The answer admits his refusal to
In view of the necessary delay on the part of counsel in preparing this case for hearing, and the further fact that if the writ of mandamus, applied for, were granted, it would be impossible for the commonwealth to take the appeal intended to follow its issual,‘in time for this court to review the order of the special judge changing the venue of the cases to the Elliott circuit court, before the beginning of the special term of that court called for their trial, we have concluded to waive all formalities, and proceed, to a decision of the principal question at issue as if the case were regularly before us by appeal. "We will not, therefore, discuss the evidence before us, or decide the issues of fact raised by the pleadings. The question we think it necessary to decide is: Did the special judge err in transferring the ease against Hargis and others to Elliott county?.
It appears from the record before us that the special judge, himself, suggested that such a state of lawlessness existed in Breathitt county as would authorize a change of venue under the provisions of section 1112, Ky. Stats., 1903, but that he doubted whether he had the power to make the transfer without the written statement from the commonwealth’s attorney required by that section and also section 1111. Whereupon, the commonwealth’s attorney prepared and filed the necessary petition or statement asking the change of venue, which the court granted. The question then arose between court and counsel as-to the county to which the cases should be sent. At that juncture counsel representing the commonwealth and the defendants were asked by the court to confer and see if- they could agree upon- a county to which to send the cases. Counsel failed to agree, and this was reported to the special judge, and he at once announced that he would transfer the casé to Elliott. To this, the commonwealth’s attorney immediately and strenuously objected. Much discussion of the matter followed, in which counsel for the commonwealth agreed to a removal of the cases to several other counties more or less convenient and accessible than Elliott, and argued that it would place the prosecution at great disadvantage to remove the cases to Elliott county because of the great distance of its. county seat from the place of the homicide and resi
It is insisted for the commonwealth this was error. This court has repeatedly held, in respect to this question, and such is now the well-settled rule, that it will not disturb the decision of the trial judge, either in granting or refusing a change of venue, unless it was based upon some ground not authorized by the statute, or amounted to an abuse of discretion. Thus, in Mount v. Commonwealth, 120 Ry. 398, 86 S. W. 707, 27 Ry. Law Rep. 788, it is said: “The question was one- to he settled by that court upon the proof. The burden was upon the appellant to show that he could not get a fair trial in McCracken county. And while this court may properly review the decision of the lower court in granting or refusing a change of
What we have said as to the trial court’s discretion in granting or refusing a change of venue applies with equal*force to its selection-of the county to which the case is to go after the necessity for the change of venue shall have been .determined; that is, tbe lower court’s selection of tbe county to which to transfer tbe case can not be interfered with by this court, “unless it is made to appear with reasonable certainty that there was error upon the part of that court in its decision of the question.” The question, therefore, of whether the venue should be changed, and if so, thie county to which the case shall he removed, must he determined by the court upon the grounds presented therefor, and all the facts and circumstances-before it, and the court should “hear all the witnesses that may he produced, by either party.” In the cases under consideration, the special judge heard no witnesses, for none were introduced or offered by either party; and, this being true, we do not think the commonwealth can-rightfully complain of the action taken by the court. As the ground for the change of venue was the lawlessness existing in Breathitt county, and that fact was made’ to appear by the written statement of the commonwealth’s attorney, and was, besides, personally known to the special judge from what had occurred at the previous-term of the court, he had the right to remove the cases to another county without further proof as to the cause for such removal, as
It is insisted 'for the commonwealth that the commonwealth’s attorney’s request, made before the order changing the venue of the cases was entered, to be permitted to withdraw the written statement for such change, should have been granted by the special judge. We do not think this .ruling of the special judge was error. The attempted withdrawal of the written statement for the change of venue was not because the commonwealth’s attorney had, in filing it, acted under a misapprehension of law or fact; nor was his request to withdraw it based upon any change of mind as to the necessity for a change of venue. TIis only reason for desiring its withdrawal was that he
For the reasons indicated in the foregoing part of the opinion, we do not grant the writ of mandamus asked, but certify this opinion to the parties concerned and the lower court, as the law applicable to the questions with respect to which the commonwealth desires an appeal.
Rehearing
On Rehearing.
Since the opinion in this case was handed down, we have received from the Attorney G-eneral a petition for its modification, containing the suggestion that as the written statement filed by the commonwealth’s attorney as the basis for the application for the change of venue ordered by special Judge Carnes, in the cases against James Hargis and others, named only the case against Hargis, the change of venue as to the other defendants was unauthorized. We do not concur in this view of the matter. ■ It is true the statement in question includes in terms only the Hargis case; hut it is manifest from the record that it was intended to apply to the cases of the other defendants as well, or, at any rate, it was so treated by court and
The petition is therefore overruled.