36 S.W.2d 8 | Ky. Ct. App. | 1931
Certifying the law.
This is an appeal by the commonwealth for the certification of the law. Two indictments and the proceedings thereon are involved. In each case the commonwealth filed a petition asking for a change of venue. This petition was supported by affidavits. A demurrer was sustained to the petition in each instance, and the motion for a change of venue denied. One of the cases proceeded to trial. A jury was impaneled and the case was stated for the commonwealth and for the defendant. The commonwealth then declined to introduce any evidence, and the trial court instructed the jury to render a verdict of acquittal. In the other case the commonwealth proceeded no further after the court overruled the motion for a change of venue. The sole question before us is whether the commonwealth made out a prima facie case requiring the court to sustain the motions. The appellee offered no proof. If the petitions were sufficient, that is, if the grounds stated in the petitions made a prima facie case, as the appellee offered no proof on the point, the court should have sustained the motion. Greer v. Commonwealth,
The question is whether the petitions for a change of venue, allowed by section 1109, Ky. Stats., were sufficient. A change of venue is a matter addressed to the sound discretion of the trial court as will be found from an examination of the cases cited above, but when the commonwealth has made out a prima facie case for a change, in the absence of evidence to the contrary, the trial court has no discretion. *593
As was said in the case of Howard v. Commonwealth,
The question is whether these allegations were sufficient to require a change of venue. The case of Howard v. Commonwealth, supra, held that it was not a ground for a change of venue that the defendant was related to many of the persons eligible for jury service in the county. *594
In the case of Mathis v. Bank of Taylorsville,
In the case of L. N. R. R. Co. v. Nethery,
The allegations of the petitions in the case before us must be accepted as true, but, accepting them as true, we do not find enough in them to say that the court committed error in overruling the motions for a change of venue.
What has been said in this opinion and in other opinions, to the effect that a petition for a change of venue makes out a prima facie case, and that the court is without discretion, has no application except where the petition contains allegations which in fact make out a prima facie case. We do not think the petitions were sufficient.
The law is accordingly certified. *595