Burchell v. Tarter

• Decision Date: 04 March 1932
• Citation: 242 Ky. 612,47 S.W.2d 75
• Parties: BURCHELL v. TARTER, Judge, et al.
• Court: Kentucky Court of Appeals

47 S.W.2d 75

242 Ky. 612

BURCHELL v. TARTER, Judge, et al.

Court of Appeals of Kentucky

March 4, 1932

Original petition for writs of prohibition and habeas corpus by Hunter Burchell against R. C. Tarter, Judge of the Twenty-Eighth Judicial District of Kentucky, and John M. Weddle, Jailer of Pulaski County.

Petition dismissed.

A. T W. Manning, of Lexington, for petitioner.

John S Cooper, of Somerset, for respondents.

DIETZMAN C.J.

The petitioner has been indicted for murder in the Rockcastle circuit court. The prosecution is at present pending in the Pulaski circuit court to which it has been transferred for trial on a change of venue. The petitioner has heretofore filed in the lower court his motion, supported by affidavit to have Judge Tarter, the trial judge, vacate the bench because, as he claims, first, Judge Tarter has expressed such feelings of hostility towards the petitioner as will prevent him from according the petitioner a fair and impartial trial and further has been active in the respects set out in the affidavit in the prosecution of this petitioner and in the hampering of his defense, and, secondly, because Judge Tarter is, as petitioner claims, a witness in his behalf and will be called as a witness on the trial of this case. Judge Tarter declining to vacate the bench, the petitioner appealed from such order to this court, and that appeal was dismissed because of lack of jurisdiction in this court in an opinion handed down February 19, 1932, and which is reported in Burchell v. Com., 242 Ky. 477, 46 S.W.2d 757. Thereupon petitioner filed this proceeding against Judge Tarter and the jailer of Pulaski county. This proceeding is double-barreled. In one aspect it seeks a writ of prohibition to prohibit Judge Tarter from sitting as trial judge in the trial of this case.

In its other aspect, it seeks a writ of habeas corpus directed to the jailer to the end that bail for the petitioner may be fixed by this court.

Petitioner supports his application in this court by a verified petition which sets out in detail and somewhat amplifies the grounds relied upon in the lower court to require Judge Tarter to vacate the bench. Judge Tarter has filed a special and general demurrer, and also a traverse verified by him with supporting affidavits, putting squarely in issue the allegations of fact concerning his alleged conduct upon which the petitioner relies as grounds to require him to vacate the bench. So far as the writ of prohibition is concerned, it will have to be denied. In the case of Duffin v. Field, 208 Ky. 543, 271 S.W. 596, 597, in which Duffin, after an unsuccessful effort in the trial court to require Judge Field to vacate the bench in a disbarment proceeding pending against Duffin, sought by an original proceeding in this court to have a writ of prohibition issued prohibiting Judge Field from trying such proceeding, in denying the application, we said: "That the ruling of defendant of which complaint is made was an interlocutory one, subject to revision by him at any time before final judgment in the cause, cannot be denied; neither is it questioned that plaintiff has the right of appeal from whatever judgment defendant may render in the disbarment proceedings, and on the hearing of that appeal the ruling of defendant now complained of would be reviewable and, if erroneously made, would be cause for reversing the final judgment. It would therefore appear that we are without jurisdiction to entertain plaintiff's motion, because he has a remedy by appeal which under the opinions, supra, and which are fortified by the text in 32 Cyc. 613, par. D, and 22 R. C. L. 9, par. 8, he has the right to appeal, and which, for reasons subsequently stated, we conclude is adequate."

It is argued, however, that the Duffin Case is not in point here First, because if petitioner is convicted on his trial and given a death sentence, or that of life imprisonment, he will have to remain in jail pending an appeal, and hence if Judge Tarter has erred in overruling the motion for him to vacate the bench, the remedy by appeal is not adequate to give full relief; and, secondly, because Judge Tarter is a witness, as appellant claims, in his behalf, and if he sits as trial judge, there is no way to make him testify. As to the first contention regarding the inapplicability of the Duffin Case, we expressly disallowed a like contention in the case of Brewer v. Vallandingham, Circuit Judge, 231 Ky. 510, 21 S.W.2d 831, 832, where we said: "The plaintiff argues, however, that the remedy by appeal is not adequate, because of the fact that he would have to remain in jail pending the appeal, since he is unable to execute bond pending the appeal, and indeed, if the death sentence or life imprisonment be inflicted, he may not execute such a bond. Criminal Code, § 75. The plaintiff, even in such a state of case, is in no different position from any other defendant who is unable to execute bond pending an appeal, and, if such argument...