94 Ky. 520 | Ky. Ct. App. | 1893
delivered the opinion op the court.
In June, 1888, the appellant was indicted in the Marion Circuit Court for the murder of Samuel Hays. At the following .term of that court, he obtained, in the regular way, a change of venue to Taylor county, .and at his first trial there was found guilty, and his punishment fixed at confinement in the State penitentiary for life. He was granted a new trial by that ■court. The case was brought to this court by the Commonwealth to have the rulings of the lower court reviewed and the law of the case settled. (See Commonwealth v. Hourigan, 89 Ky., 305.) Subsequently, two other trials were had in the Taylor Circuit Court.
The first question is, whether the Marion Circuit Court had jurisdiction of the case. Appellant’s counsel contend that the case was properly removed from Marion county, after which the Marion Circuit Court had no more jurisdiction over it than if it had never been there; that there is no way known to the law by which it could ever get back there, as chapter 12 •of the G-eneral Statutes provides that but one change •of venue shall be granted in any case; that the Taylor Circuit' Court had no authority to set aside the order of the' Marion Circuit Court sending the case to Taylor county, and the Marion Circuit Court had no power in 1893 to set aside its order of transfer made in 1888; that while the indictment shows that the alleged crime was committed in Marion county, the record also.shows that the Marion Circuit Court,
The object of the law in providing for a change of venue is to afford the accused a trial in a community where the state of public opinion is such as that he can have a fair hearing, or is not such as to prevent it. Ordinarily he accomplishes this result by filing his petition and supporting it by the affidavits of others. But he may obtain the same result without* observing these forms, the Commonwealth consenting. Whatever method is observed, he is but selecting a tribunal in which to be fairly tried.
These formalities provided by the statute may be regarded as so many hindrances to the attainment of his purpose. Therefore, if they are waived, and he selects his forum and submits himself to the jurisdiction, upon what principle can he afterwards complain ? No constitutional or inalienable night is parted with or indeed any .right; on the contrary, by the overt act of the defendant, he obtains directly what the statute gives him only through the observance of certain forms. In Lightfoot v. Commonwealth, 80 Ky., 524, it.
The appellant complains because the record from Taylor connty was filed in the Marion Circuit Court at the April term, when he was at once tried; that, .as the statute provides in civil cases that a case does not stand for trial in the court to which it is removed, unless the record has been lodged with the clerk of the court ten days before the first day of the next term of court, such rule should be adopted in criminal cases. It is sufficient to say that there is no such statutory requirement, and no reason for any. The case was fixed for a day certain, in the order remanding the case, obtained on motion of the accused. The motion for a continuance by reason of the sickness of counsel was also properly overruled. The attorney whose sickness was urged as a ground therefor was present and participated in the trial.
There appears to have been no lack of counsel either in respect to numbers or ability to conduct the defense skillfully and zealously. Some stress is laid on what is charged as misconduct on the part of the attorneys
The witnesses, on account of whose absence a continuance was asked, were all present and testified, save Hughes, Ranéy and Pipes, who had repeatedly been absent before and the case continued for them. It was not shown that by a continuance they could be had at the next term. This was the fourth trial, and the discretion allowed the court under section 189 of the Criminal Code, in permitting the affidavit for continuance to be read as the deposition of the absent witnesses was, we think, not abused in this case. There was no error in the instructions given, and none committed in refusing those offered by the defendant. The law of the case Avas substantially settled on the former appeal.
Judgment affirmed.