220 S.W.2d 844 | Ky. Ct. App. | 1949
Reversing.
Andrew Davis killed his son-in-law, Delmar Stacey, on December 28, 1947. Davis appeals from his conviction of murder with a penalty of life imprisonment. Three points are urged for a reversal of the judgment. We may dispose of two of them summarily.
The vigorous argument that the court should have given the defendant's attorneys more than thirty minutes to argue the ease cannot be considered since the point was not raised in the motion for a new trial, nor any reference whatever made in the bill of exceptions to the argument. There was no place for an instruction on defense of home. The shooting took place in the house where both men lived, and all the evidence shows that it was a personal fight between two men almost, if not altogether, drunk.
It appears that an indictment was returned on February 4, 1948, against Davis and his wife and that in *362 default of executing a heavy bond they were put in jail. Being unable to employ counsel, on February 10 the court appointed two lawyers to defend them and set the case for trial on the 18th. The record does not refer to the disposition of the indictment returned February 4 but shows that the defendant, Davis, was placed on trial on an indictment returned on the 16th, two days before the trial. In support of a motion to continue the case the defendant's attorneys filed their affidavit to the effect that they had not been able to prepare the case for trial. They stated in substance that the homicide occurred fourteen miles from Barbourville; that there was considerable hostility against the accused in that community; that they had been busy in court tending to their own cases during the week and the duty had been placed upon them of defending a hard case without compensation; that they had had no time or opportunity to familiarize themselves with the facts by going to the community or interviewing prospective witnesses; that the defendants were poor and confined in jail and had been unable to assist their lawyers or to arrange for the transportation of witnesses and had no close relatives who could do so for them. The county attorney's counter-affidavit was to the effect that the defendant, Davis, had been at liberty on bond between his examining trial on January 3 until February 4 and that his brother was a deputy sheriff and widely acquainted with the people of the community where the homicide occurred and that there was no hostility to him.
It is appreciated that delay in the trial of a person accused of crime sometimes results in the miscarriage of justice. On the other hand, experience has taught that too speedy a trial sometimes has the same result from the defendant's standpoint. It is recognized that the right of an accused person to compulsory processes for obtaining witnesses necessarily embraces a reasonable opportunity to prepare for trial. Mitchell v. Commonwealth,
Judgment reversed.