169 Ky. 797 | Ky. Ct. App. | 1916
Opinion op the Court by
Affirming.
Scott Sullivan and others were indicted for the crime of confederating and banding themselves together for the purpose of intimidating, alarming and disturbing another person. On a separate trial he was found guilty by the jury and his punishment fixed at confinement in the penitentiary for not less than one year and not more than one year and a day. He appeals.
Briefly stated, the facts are as follows: Erastus Antle held the office of justice of the peace in the county of Bussell. Pursuant to affidavits filed under subsection 1, section 2572b, Kentucky Statutes, he issued a search and seizure warrant against one Yernon Bradshaw. The warrant was placed in the hands of a deputy sheriff of Russell county, who went to the home of Bradshaw and there discovered and took from the latter’s possession a keg of whiskey, which he delivered to Antle, the justice of the peace, on May 26th, 1915. About two o’clock oh the morning of May 29th following, several men,
Appellant’s defense was an alibi. He claims that he stayed at the home of Price Bradshaw on the night in question. He went there to work for Bradshaw the following day. He reached the Bradshaw home after the entire family had retired for the night. About twelve o’clock four men appeared at the home of Bradshaw and asked for him. Mr. Bradshaw arose and went out to ascertain what the men came for. They wanted to know if Yernon Bradshaw had returned. Mr. Bradshaw directed appellant to go out and see the men and find out if he. could give them the information they desired. Appellant then joined the men in Bradshaw’s barn and remained with them for something like three hours. Appellant’s story is corroborated by the men who called at the Bradshaw home, as well as by Price Bradshaw and his family.
The first ground urged for reversal is the refusal of the trial court to consider defendant’s application for, and to grant, a change of venue. The statute regulating changes of venue in criminal cases provides in substance that the application, if made by the defendant, must he made by petition in writing, verified by the defendant; and the applicant must produce and file the affidavits of
Another error assigned is the refusal of the trial judge to vacate the bench. We have frequently written that an affidavit made for the purpose of requiring the regular judge to vacate the bench is not sufficient which merely states the conclusions of the litigant. On the contrary, it should state facts which show partiality or hostility on the part of the judge. While the affidavit in this case alleges the belief of the affiant that the trial judge would not give him a fair and impartial trial, the facts alleged as the ground for such belief are wholly insufficient. Though the facts be, as they must be, admitted to be true, it by no means follows as a reasonable inference therefrom that the trial judge would not give the affiant a fair and impartial trial. At most they give rise to mere suspicion or conjecture. Under the circumstances, we therefore conclude that the affidavit was insufficient, and that the trial judge did not err in refusing to vacate the bench. German Insurance Co. v. Landram, 88 Ky. 433, 11 S. W. 367; Sparks v. Colson, 109 Ky. 711, 60 S. W. 540; Boreing, &c. v. Wilson, &c., 128 Ky. 570, 108 S. W. 914.
'Complaint is also made of the fact that one of the jurors was excused after the panel had been made up and he had been accepted by both sides. It appears, however, that this action was taken by the court before the jury was sworn to try the case and before the de- ' fendant had pleaded to the indictment. Clearly at this stage of the proceeding* the excusing of a juror was a matter that addressed itself to the sound discretion of the court. The record does not disclose why the juror was excused. In the absence of a showing to the contrary, we must assume that he was excused for a valid and sufficient reason. Under the circumstances, it can not be said that the trial court abused a sound discretion, or that defendant was prejudiced by the court’s ruling in excusing the juror.
The point is also made that the trial court erred in permitting the Commonwealth, after the defendant had
Finally, it is insisted that the trial court improperly instructed the jury. No complaint is made of the instructions as certified in the bill of exceptions. The bill states that the instructions contained in the bill were objected to by the defendant, because they were not the instructions given on the trial. "Whether this be true or not we have no means of knowing, and, even if it be true, the instructions which it is claimed were given are not before us and we have no means of determining whether they are correct or not.
Finding no error in the record prejudicial to the substantial rights of the defendant, it follows that the judgment should be affirmed, and it is so ordered.