124 Ky. 340 | Ky. Ct. App. | 1907
Opinion op the Court by
Overruling motion.
The regular circuit judge declined to sit in the case of Commonwealth v. James Hargis, and several other prosecutions pending in the Breathitt circuit court. The Governor appointed William M. Games as special judge to hold the court. . He called a special term, of, the court for the trial of the eases, and was proceeding with the trial of the case of Commonwealth v. Hargis, when the Attorney General and the commonwealth’s attorney filed in this court a petition praying this court to issue a writ, restraining him from further proceeding in the matter. A temporary order was made as prayed; a response was then filed to the petition, and the case was heard orally. We will indicate briefly our conclusions upon the record.
1. It is not necessary that a special Judge shall be a resident of the district. It was so held in Farrell v. Commonwealth, 7 Ky. Law Rep. 683, and in Breckinridge v. Commonwealth, 97 Ky. 267, 17 Ky. Law Rep. 263, 30 S. W. 634. The statute under which these decisions were rendered, provided that the special judge must possess “the qualifications of a circuit judge.” The present statute provides that he must possess “all the qualification of a circuit judge to try •such action, proceeding, or prosecution. ’ ’ The require
2. It was not necessary that the regular judge of the district should call the special term. He had declined to sit in the eases at all. The special judge, by section 971, Ky. Stat., 1903, is given all the power of the regular judge. He is simply substituted for the regular judge in the cases referred to, and may call and hold a special term, just as a regular judge could hold it. The act of 1906 (see Acts 1906, p, 249, c. 23) is an amendment to section 964, Ky. Stat., 1903, and does not repeal the provisions of section 971. The special judge, after he qualified, possessed all the powers of the regular judge as to the cases for which he had been appointed. "We therefore conclude that the court was properly constituted, and that the special term was regularly called.
3. The action of the circuit judge in overruling the motion of the commonwealth for a continuance Was evidently based upon the ground that the attendance of the witnesses could probably be secured, and his judgment in this matter seems to have been verified by the facts. The circuit judge must necessarily exercise a sound discretion in the matter bf continuances. The defendant is entitled to a speedy trial, and the circuit judge should not allow the case to be continued over his objection, unless, in the judgment of the circuit court, the ends of justice so require. It is proper that due regard should be given the views of the commonwealth attorney as the representative
4. The motion of the commonwealth attorney to quash the indictment and re-refer the case to the grand jury was made apparently on the ground that the circuit court, in a neighboring circuit, had held, under a similar indictment, that the defendant could only he convicted as principal in the homicide. The commonwealth attorney learned that much of the evidence for the commonwealth would he directed to show that the defendant was an accessory before the fact, and, being apprehensive that the ruling referred to would be followed in this case, he moved the court to quash the indictment, and re-refer the case to the grand jury. The court took the view that the indictment was sufficient, and that there was nothing to be gained by quashing it and re-referring the case to the grand jury. In the case of Commonwealth v. Hargis (this day decided), 99 S. W. —, this court has reversed the case referred to in which the indictment was held insufficient to warrant the conviction of the defendant as an accessory before the fact. Judge Carnes was right in holding the indictment good, and a reference to the grand jury unnecessary. Under the indictment the defendant may be convicted, if he was absent at the time the homicide was committed, and was an accessory before the fact to the murder.
5. Under the facts shown, the circuit court did not abuse a sound discretion in deciding to appoint an elisor to act in lieu of the sheriff. There was no controversy as to the facts stated in the affidavits.
6. The court had the right to try the eases as they stood on the docket.
In the foregoing conclusions all the members of the court,concur. In view of the fact that we are assured by Judge Carnes that it will be his pleasure to execute the law as declared by this court, and inasmuch as the statute as to the selection of jurors with its amendments has not been heretofore construed, the court is of opinion that the preliminary order heretofore staying proceedings should be set aside, and the petition dismissed. This conclusion renders it unnecessary. for us to pass on the jurisdiction of this court in the premises.
Motion overruled.