165 Ky. 312 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This is the second appeal from a judgment of conviction in this case. The opinion upon the former appeal will be found in 161 Ky., 81. The first trial was had in the Carter Circuit Court, After the judgment of conviction at that trial was reversed by this court, the ap
No complaint is made that the court below made any ■ errors in rulings upon the admission or exclusion of evidence, or in instructing or failing to instruct the jury, as to the whole law of the case', and the only grounds insisted upon for a reversal of the judgment are
First: That the trial judge erred in overruling appellant’s motion to require him to vacate the bench, as the judge in- the case. • • • • ■ •
Second: Because the court erred in ordering the change of venue in the case to be made to Lawrence county, instead of some other1 county in the state.
Third: Because the court erred in overruling appel.lant’s motion for a continuance, of Ms case when it was called for trial in the Lawrence circuit court.
The appellant’s motion for a continuance of his case ■was based upon an affidavit, showing the absence of certain witnesses which he desired to use upon the trial, and a statement of the facts they would testify to, if present, and further, on account of the absence of one of his attorneys at the trial, on account of illness of the attorney. The bill of exceptions shows that before the court overruled the appellant’s motion for a continuance, that the Commonwealth’s attorney, in open court, agreed that the affidavit of the appellant might be read as the deposition of the absent witnesses, and it was then that the court overruled Ms motion for a continuance. No motion was made to require the Commonwealth to admit the truth of the matters* which it was alleged in the affidavit such absent witnesses would testify to, and this was not the term of the' circuit court at which the indictment was found. Tlie affidavit showed that one attorney for appellant was absent on account of illness, but th¿ record showed that he was represented upon the trial by three attorneys, two of whom represented him in the
There seems to be no valid reason for insisting that the court erred or abused its discretion in changing the venue of the case to Lawrence county, or that anything prejudicial would or could result to the appellant by the order. Lawrence county is in .the same judicial district with Carter county, and is an adjoining county thereto. The record does not disclose that appellant made any objection to the transfer of the case to the Lawrence circuit court at the time the motion for the change of venue was granted, and the order made directing the case to be transferred to the Lawrence circuit court, and neither did the appellant except to the order directing the venue to be changed to Lawrence county. It appears that on the following day the appellant filed an affidavit, in which he set forth his reasons for his objection to tlie transfer of the case to the Lawrence circuit court. This affidavit appears to be more an attack upon the Commonwealth’s attorney than anything else. The objection to the Lawrence circuit court, set out in the affidavit was, that the Commonwealth’s attorney had engaged in a prosecution of a case in the Lawrence circuit court, in which the facts were similar to the case of appellant, and that the attorney for the Commonwealth had made a very vigorous effort for the prosecution in that case, and that the people in Lawrence county had been aroused, and were very much opposed to the crime of homicide. This would only seem to indicate that the attorney for the Commonwealth was doing his duty, and that the citizens of Lawrence county were aroused to a proper way of thinking upon the subject of homicide, and could not be construed as placing the appellant in a situation where he could not have a fair trial. The affidavit discloses that the court house in two other counties in the district are only from twenty-five to thirty
The judge of the trial court has better opportunity of estimating the conditions which exist in the communities in his district than we can possibly have, and his
The ground for a reversal which appellant’s counsel most seriously insist upon is the alleged error of the trial court in overruling the motion for the regular judge of the court to vacate the bench, and retire as the judge of the court for the trial of this case.
The defendant in a criminal prosecution is not entitled to have the regular judge of the court retire from the case, unless he files his affidavit, stating his belief, that the judge will not grant him a fair and impartial trial, or will not fairly and impartially hear and decide an application for change of venue made by him, and he must state in his affidavit the facts upon which he bases his belief, that the judge will not decide upon the motion fairly and impartially, or will not give him a fair and impartial trial. , His mere belief that the judge is hostile to him will not avail. His statement that certain things are facts, about which the affidavit discloses he can only have a mere opinion, are not sufficient. The fact or facts, when stated, must be of such character as should prevent the judge from properly presiding in the case. The judge himself must pass upon the facts stated, as to whether or not they constitute a sufficient cause to require him to vacate the bench, but his decision upon such a question may be reviewed by this court. The objection to the judge must be made, to be available, before an appearance to the merits of the case, or to preliminary motions preparatory to the trial of the case are heard. Germania Insr. Co. v. Landram, 88 Ky., 433; Massie v. Com’th., 93 Ky., 590, 20 S. W., 704. In Schmidt v. Mitchell, 101 Ky., 570, it was held, that an affidavit, which consisted of mere hearsay, as to the facts stated, was not sufficient to justify the regular judge in vacating the bench. In Erwin v. Benton, &c., 27 R., 907, it was held, that a statement in the affidavit, that the regular judge was opposed to the sale of intoxicating liquors to such an extent, and that his bias was so pronounced, that he could not afford a fair trial in a contest growing out of a local option election, was not sufficient. In White v. Jouett, 147 Ky., 197, it was held that where a defendant to an action filed a demurrer to the petition; made a motion to strike therefrom, and other motions throughout the term of court, he cannot at a subsequent term rely
In Sparks v. Colson, 109 Ky., 720, this court said:
“But it is'not enough to merely assert the fact of personal hostility or partiality. -He must state the facts which he alleges constitute-the state of feeling complained of. We- have held that the truthfulness of the facts-stated cannot be questioned by the judge (Vance v. Field, 89 Ky., 178, 12 S. W., 190); therefore, it is all the more important that the. facts, and not the litigant’s conclusions or suspicions, be- set-forth, that this court may have an opportunity of testing their sufficiency, if the-trial judge should hold them insufficient.” Massie v. Com’th., 93 Ky., 588; McDonald v. Wallsend Coal Co., 135 Ky., 624; Anderson v. Com’th., 117 S. W., 364; Rush v. Denhardt, 138 Ky., 238; Wathen v. Com’th., 133 Ky., 94, 116 S. W., 336, support the doctrines above announced.
-Upon the first trial of this case, the appellant filed an affidavit and moved the court for a continuance; and filed a written motion and moved the court to admit him to bail; and thereafter, at the-time to which a continuance of the case was taken, again moved for a continuance of the case, to the next term of the- court, and filed affidavits in support of his motion, and having thus tested out the trial judge, then filed his application and moved the regular judge to vacate the bench. After the case had been appealed to this court, and reversed, then upon the calling of the casé again for trial, the appellant again filed his affidavit, and moved the court to adjudge that the judge vacate the bench. 'This motion was overruled, and of this appellant now complains. The affidavit of appellant is very lengthy, and contains a great many statements and allegations, but so far as it undertakes to state any facts upon which he bases his belief, that the judge would not rule fairly and impartially upon a motion for change of venue or upon his trial, it is a statement of alleged facts, which transpired long before his first trial, and of which appellant was fully cognizant, when he was first indicted, and which he waived his right to object on account of by his failure to object to the judge at the beginning, or it is a statement of alleged
The application of the conclusions, of this court, in the above mentioned cases, fails to disclose that any error prejudicial to the substantial rights of appellant occurred in the proceedings, ánd the judgment is, therefore, affirmed.