33 S.W.2d 1 | Ky. Ct. App. | 1930
Certifying the law.
On March 9, 1927, some one slew Wm. Hurt. French Caldwell was charged by indictment with his murder. He was tried in November, 1927, and the jury failed to agree. The commonwealth appealed under sections 334, 335, 337, etc., of Criminal Code of Practice, for a certification of the law. See Com. v. Caldwell,
Caldwell insists the petition was bad on demurrer because accompanied by no affidavits, but he is wrong about that, as section 1111, Ky. Stats., imposes no such necessity on the commonwealth. All three of the witnesses examined showed they were acquainted with the state of public feeling in Perry county. Two of these witnesses testified the commonwealth could not get a fair trial in the county, and the other one said, "I really don't know whether they could or not."
Ordinarily the granting or refusing of a petition for change of venue is a matter within the sound discretion of the trial court, but the court cannot act arbitrarily or capriciously. See Hill v. Com.,
The commonwealth had made out a prima facie case for a change, and in the absence of any evidence to the contrary the change should have been made. The law is so certified.