120 Ky. 178 | Ky. Ct. App. | 1905
Opinion by
Affirming.
The appellant, Thomas White and Cnrtis Jett were jointly indicted in the Breathitt Circuit Court for the murder of J. B. Marcum. After a mistrial in that court, a change of venue -was applied for in behalf of the Commonwealth, and was granted by the court, and the case transferred to the Harrison Circuit Court. A joint trial of the accused followed in the latter court, resulting in their conviction at the hands of the jury, and the fixing of the punishment of each of them at confinement in the penitentiary for life. A new trial was refused by the lower court, and a reversal of the judgment of conviction as to the appellant, White, .is now asked, the appeal as to Jett having been withdrawn by him since the record w'as filed in this court.
Numerous errors were assigned for a new trial, but we will only notice such of them as are relied on for a reversal. It is insisted for appellant that the judge of the Breathitt Circuit Court improperly allowed the Commonwealth’s attorney to make two applications for a change of venue in the case, and that it was error to grant the change as was done at the time of the making of what appellant claims was the second application. It appears that at the same term of the Breathitt Circuit Court at which the indictment was returned; and before the trial in that court of Jett and appellant, the Commonwealth’s attorney filed his affidavit, stating, in substance, that, in his opinion,
"While it is true that section 1118, Ky. St. 1903, provides that “not more than one change of venue, or application therefor, shall be allowed to any person, or the Commonwealth, in the same case,” it does not appear from the record that the judge of the court did in fact grant the change of venue first asked, by the Commonwealth’s attorney, though he stated his purpose to do so, but before entering or directing the entering of an order to that effect the Commonwealth’s attorney withdrew the application. This, we think, left the Commonwealth situated as if the application for a change of venue had not been made
Upon the calling of the case for trial in the Harrison Circuit Court, Jett and appellant filed a special demurrer to the jurisdiction of the court, which was overruled. The demurrer raised the objection to the right of the judge of the Breathitt Circuit Court to change the venue of the case to the Harrison Circuit Court, and we have already disposed of that question.
. It is further insisted for appellant that the judge of the Breathitt Circuit Court érred in requiring him to he confined in the jail of Payette county, instead of the jail of Harrison county, to which-county his case was transferred; it being contended that this was prejudicial, as he had the right to he in the county where his trial was to take place that he might properly prepare his case for trial. (Ky. Stats., 1903, sec. 1113), provides that upon granting a change of venue in a criminal case the judge of the court shall direct that the defendant he delivered to the jailer of the county where the trial is to he had. Sec. 2238 of the statute, supra, provides: “If in any cpnnty of this Commonwealth there is no jail, or the
It is contended by appellant that incompetent evidence was admitted by the trial court to his prejudice; that is, that certain witnesses were permitted to testify in support of the reputation of B. J. Ewen, the principal witness for the prosecution, that he did not get drunk, or gamble, and that he attended church and Sunday-school. We find from the record that appellant and Jett, through their counsel and witnesses, made a-very determined and bitter attack upon the character of Ewen, and great indulgence was shown by the court to both the Commonwealth and defend
It is also complained that it was error to allow Mrs. Johnson, a sister of J. B. Marcum and witness for the prosecution, to testify "that deceased had information that Tom White and others were going to kill him.” It appears from the record that the witness testified in substance that on one occasion previous to the death of her brother she was at his home, when, in her presence he was given the information in question, and witness, upon being advised that men armed with guns were then at a stone quarry near her brother’s house, went out to see who they were. Upon arriving at the quarry she discovered there four men with guns, and that appellant was one of the four; that upon seeing her they left the quarry, and, after lingering a While in sight of the house, went off. In view of other testimony in the ease relied on by the Commonwealth to connect appellant with the assassination of Marcum, we think the foregoing testimony of Mrs. Johnson was competent, except what was said to her brother in her presence by others to the effect that "Tom: White and others were going
It is contended by appellant that the judge of the Harrison Circuit Court was without authority to calla special term of court for the trial, of criminal and penal cases, except by an order of court entered at a regular term, and that there was no order oLcourt calling the special term for the trial of this case, but only a notice thereof, signed by the judge, and posted on the courthouse door in vacation; and further, that no emergency existed for, or required the holding of, the special term. Section 964, Kentucky Statutes, provides: “In each county of said districts, except- counties having continuous session, there shall be held each year the number of terms of the circuit court provided by law, and the term in any district may be extended-if .the business requires so that it does not interfere with any other term in the district; and whenever it is neces sary to transact.the business a special term may be called, in any county, either by an order entered of record at the last preceding regular term in the county, or by notice signed by the judge and posted ,at the courthouse door of the county for ten days before the special term is held. The order or notice, shall
It will be observed that the special term provided for in the section, supra, may be called, either by the order of the court, entered during the last preceding regular term or by notice signed by the judge and posted at the courthouse door of the county, for ten days before the special term is held; and, further, that grand and petit juries may be summoned for, and criminal and penal cases tried, at such special term. Section 2244 provides for the summoning of grand and petit juries, or either, for such special terms. Manifestly the calling of the special term by the judge of the Harrison Circuit Court in vacation, by the notice signed and posted as required by the statute, was as valid as if it had been called.by an order of the court entered at a regular term. Nor do w<e think it material whether the jury for the special term were ordered to be summoned before or after the beginning of the special term. Section 2244 provides that if at any special term of a circuit court grand and petit juries, or either, will be required, the judge of the circuit court may, not more than ten days* nor less than five days, before the special term is to begin, direct the clerk of the court to immediately open the list made and delivered to him at the last regular term
Considering the fact that the case at bar involves the charge of murder against two- persons, who might have been expected to demand separate trials, either of which, in view of the great number of witnesses, would be tedious and expensive, it was but natural that the judge of the Harrison Circuit Court, upon being advised of the transfer of the case to that court from a district other than his own, should have thought it necessary to call a special term in order to give the accused a speedy trial, and at the same time prevent any congestion of the. docket during the regular terms of his court. Obviously the circumstances, presented such an emergency as under the provisions of the statute, supra, justified the calling of the special term. This court has repeatedly upheld judgments of conviction in criminal cases secured at special terms of the circuit courts called as in the case at bar. And in Bales v. Commonwealth, 11 Ky. Law Rep., 297, it was held ‘ ‘ that the accused having been properly tried and condemned, it is immaterial whether the order calling a special term at which he was tried was signed by the judge. ’ ’
In the absence of competent evidence to the contrary, every presumption will be indulged as to the regularity and validity of the order of the trial court, and we have been unable to find in this record anything that conduces to show that there was error in
In Roberts v. Commonwealth, 94 Ky., 449, it was held that “it was not error to permit an attorney, other than the regular attorney for the Commonwealth, to state to the jury the nature of the charge against the defendant.”
Finally, it is urged that appellant’s motion for a peremptory instruction directing the jury to find him not guilty should have been sustained. It would unnecessarily lengthen this opinion to enter upon a detailed statement of the facts relied on by the Commonwealth to show appellant’s guilty participation in the murder of Marcum. Suffice it to say that while the evidence showed that Curtis Jett fired the fatal shot which deprived Marcum of his life, much of it also conduced to prove that appellant was an aider and an abettor in the crime, the perpetration of which was unaccompanied with a single extenuating circumstance.
The victim was shot in the back without warning of his impending fate or knowledge of the presence of his assassin. As there was some evidence to go to the jury of appellant’s participation in the crime, a peremptory instruction was unauthorized, and the giving of it would have been error.
The instructions properly presented all the law of the case to the jury, and as, upon the whole record, appellant seems to have had a fair trial, the judgment is affirmed. •