202 Ky. 1 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
On December 10, 1922, appellant, Gold Nelson, shot and killed Bill Stone in a public road on Emily fork of Wolf -creek in Martin county. He was indicted by the grand jury of the county charged with murder and on his trial was convicted of voluntary manslaughter and sentenced to serve a term of twenty-one years in the penitentiary. His motion for a new trial was overruled, and from the judgment pronounced on the verdict he prosecutes this appeal. Numerous alleged errors are contained in the motion, but many of them are abandoned on this appeal and we are convinced from the record that they and others are wholly without merit, and in this opinion we will discuss only those which we deem 'of sufficient importance to require it. Before directing attention to any of them, we deem it proper at this point -to say that the evidence for the Commonwealth proved defendant guilty of a most brutal and malicious murder, while defendant and some of his witnesses established by their testimony a case of self-defense, although the developed circumstances and facts surrounding the parties at the time are not -corroborative of their testimony, but on the -contrary to our minds, greatly weaken it.
Briefly stated, the testimony for the Commonwealth relating to the immediate time of and just preceding the homicide, was, that defendant and deceased were at the i*esidenee of James Fields, who lived on the road some fifty or seventy-five yards from where the killing occur-
It is first insisted that the presiding judge of the court should have sustained the motion made by defendant and supported by affidavit to require him to vacate
At this point it might be appropriate to say that in applying the provisions of section 968 of the statute, which is the one authorizing a defendant in certain cases to require the presiding judge to vacate the bench, this court in a long list of cases has held that an affidavit in the language of the statute was not sufficient for that purpose, since it was held that the facts upon which the affiant believes that the presiding judge “will not afford him a fair and impartial trial, or will not impartially decide an application for change of venue,” must be set forth so that it may be judicially determined whether legal disqualifications exist or not, and if they are insufficiently stated the application should be denied. The most recent case from this court, in which many others are cited, and in which it was held that the fads and not the statutory language must be incorporated in the affidavit, is that of Stamp v. Commonwealth, 195 Ky. 404; and in that case, as well as the others incorporated in that opinion, it was held that “The words ‘bias,’ ‘prejudice’ and ‘hostility’ as here used refer, of course, to the mental attitude or disposition of the judge toward the appellant, and not to any views he may entertain respecting the crime with which the latter was charged.” There is nothing in that portion of the affidavit now under consideration showing any personal bias, prejudice, hostility or ill-will toward the defendant, nor any mental corrupt attitude towards him. It contains only a statement, in substance, that the presiding judge from the information he had obtained was under the impression that defendant was guilty of the crime with which he was charged, and we fail to see wherein such a created impression alone would afford a just ground for the existence of hostility, bias or prejudice. on the part of the judge against the accused, since it would be a stupid person indeed who would not entertain some notion regarding the guilt or innocence of one from the facts possessed by the one entertaining the notion. It is a characteristic of the human mind to form such opinions and it is doubtful if one who would not do so would be qualified to fill the responsible office of circuit judge. In
As said in the case of May v. May, 150 Ky. 522, “A judge of a court is human and like every other man must have Ms likes and dislikes, .must find in the members of the bar characteristics and qualities which he likes or dislikes, of which he approves or disapproves. Insofar as he is not swayed by these natural emotions to do any man an injustice, the fact that he has them in common with his brother man does not disqualify him from trying a case.’-’ In that case the ground relied on to sustain the motion was that the trial judge was unfriendly to applicant’s attorney, and the court in denying the sufficiency of the ground used the language quoted. In the case of State v. Morrison, 67 Kan. 144, 72 Pac. 544, in dealing with the question of an entertained opinion by the court of the defendant’s guilt of the crime with which he was charged, and in denying the sufficiency of that fact to require a vacating of the bench, the court said:
“The belief or disbelief of a trial judge in the guilt of a defendant put upon trial before him is not a test of Ms qualification to preside at such trial. A trial judge may be convinced from his personal knowledge of the case, or what he has heard from others, of the guilt of one put upon trial before him, and yet with the utmost fairness and impartiality conduct the trial and give the defendant a fair and impartial hearing. It is the existence of prejudice or bias in the mind of the trial court against defendant, which must be clearly shown in support of an*7 application for a change of venue from the court presided over by such judge, not the belief of the judge in the guilt of defendant. ’ ’
That quotation is found in the note to Ingles v. McMillan, reported in 45 L. R. A. (N. S.) 511, and the annotator add.s:
“So, it may be stated as a general rule, supported by Ingles v. McMillan, and by practically all the cases hereinafter cited, that mere belief alone in the guilt of an accused does not disqualify a judge to sit at his trial.”
But it is insisted that while that may be true, yet if the judge expresses that opinion to others he then becomes disqualified and should not preside at the trial. In answering that contention it may be 'said first, that the affidavit of defendant does not disclose to whom or the circumstances under which the presiding judge gave expression to any such belief. It is not disclosed that he did so in such a manner and under such circumstances as to create public opinion against him, or whether it was done publicly or privately. In the case of Heflin v. State, 88 Ga. 151, 30 Am. St. Rep. 147, 14 S. E. 112, the accused was indicted for perjury and the presiding judge also presided at the trial in which the alleged perjury was charged to have been committed. He, of course, entertained a belief as to the defendant’s guilt or innocence of perjury, and it appears that he advised his counsel to enter a plea of guilty; and the court held that such belief of and advice by the presiding judge, in the absence of other facts showing actual bias and prejudice, were insufficient to deprive him of the right to preside at the trial. In the cases of Drechsel v. State (Texas), 39 S. W. 678; State v. Blount, 124 La. 202, 50 So. 12; State v. Bohan, 19 Kan. 28, and People v. Williams, 24 Cal. 311, the presiding judge had both formed and expressed an opinion as to the defendant’s guilt, and it did not appear that he had given such expression in such a manner or under such circumstances as to indicate an adverse mental attitude toward the defendant and for that reason the application was denied.
We do not overlook the fact that all litigants and defendants under criminal charges are entitled to have their cases tried by an impartial tribunal. But, it is not every formed or expressed opinion that amounts to
It is also complained that the court erred in admitting before the jury the clothing worn by the deceased at the time he was shot, upon the ground that they were not sufficiently identified. In the first place, we find no objection to that testimony, but if there had been then the evidence identifies the clothing possibly as accurately as human testimony could do it, and we find nothing in this objection.
It is next insisted that certain letters written to defendant by the Commonwealth’s witness, Mrs. J. H. Fields, were improperly excluded from the jury. The letters were objected to as .a whole and the contents of many of them were not relevant upon any issue in the case, either direct or collateral. They were offered for the contradicting effect, if any, they might have upon the testimony of the writer, but she admitted in her testimony all of the contradictory matter contained in the letters, and, as we have heretofore stated,- she was impeached by proof of contradictory statements as well as reputation for truth and veracity; and if, forsooth, any portions of the letters were technically competent, we are convinced that the exclusion of them were not prejudicial to the substantial rights of the defendant.
Upon the whole case, we are convinced that the defendant had a fair and impartial trial, and likewise convinced that his punishment can by no means be considered as severe. Wherefore, the judgment is affirmed.