Adkins v. Commonwealth

• Decision Date: 16 January 1896
• Citation: 98 Ky. 539,33 S.W. 948
• Parties: ADKINS et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

33 S.W. 948

98 Ky. 539

ADKINS et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 16, 1896

Appeal from circuit court, Knox county.

"To be officially reported."

Joseph Adkins and Jesse Fields were convicted of murder in the first degree, and appeal. Reversed.

Breckenridge & Shelby, B. B. Golden, C. Bowers, C. B. Lyttle, J. C Forester, and John L. Scott & Son, for appellants.

Wm. J Hendrick, for the Commonwealth.

GRACE J.

This is an appeal by Joseph Adkins and Jesse Fields from a judgment of the Knox circuit court sentencing each of them to confinement in the state penitentiary for life, for the murder of Josiah Combs. The killing occurred in Hazard, the county seat of Perry county, on the 23d day of September 1894; same being Sunday and about 7 o'clock in the morning. Indictment against these defendants was duly found by the grand jury of Perry county on the 13th day of December, 1894. And on the same day, a motion of the commonwealth, for the removal of the cause to another county was made, accompanied by the written statement of the commonwealth's attorney, in due form, that the state of lawlessness was such in Perry county that a fair trial of the accused on said charge could not be had in that county. This motion was not opposed by the accused, but pending same they filed a joint affidavit saying that they had been participants in what was known as the "French-Eversole Feud," that had been going on in Perry county and (naming) 10 other counties, including the county of Knox, and that the state of public opinion against them, among the masses of the people, relations, and friends of the Eversole faction and J. M. Combs, in the counties named, was such that they did not believe they could have a fair trial in either of said counties. This affidavit was supported by the joint affidavit of three other persons, who simply say that they are acquainted with the facts stated in the foregoing affidavit, and that they believe them to be true. Upon this state of the record, the court made an order removing the cause to the county of Knox for trial, and to this order defendants excepted. And when the case was called in Knox county for trial, and before entering their plea of not guilty in said court, they objected to the jurisdiction of the circuit court of Knox county, and moved that "said cause be remanded to the circuit court of Perry county, to be again assigned." This motion was overruled by the court.

It will be noticed that by the statute, ^[1] passed in pursuance of the constitutional authority, for the removal of causes by the commonwealth, when the commonwealth's attorney has filed his statement showing the necessity of the removal,"the court may then act on its own personal knowledge in the removal of the cause, either to some adjacent county, or yet to some other county most convenient, and in which the court is of opinion that a fair and impartial trial may be had." In the order removing this case, the court recites that, so acting on its own personal knowledge, it removed the case to the county of Knox, "as being the most convenient county for the trial of same in which this state of lawlessness did not exist." In this removal the court was authorized so to act, and was not bound by the affidavit of the accused, though supported by the other affidavit, in objecting to the county of Knox. The objection of the accused to the jurisdiction of the circuit court of Knox county was properly overruled.

The Knox circuit court begin on the second Monday in April, 1895. This cause seems to have been set for the fourth day of the term. The commonwealth announced "Ready." The defendants were not ready, and, being required, they filed an affidavit setting out the absence of some 25 witnesses by whom they could prove important and material facts, chiefly relating to an alibi in behalf of both parties; showing that in March, before, they had procured a subpoena for the witnesses, and placed same in the hands of the sheriff of Breathitt county, where said witnesses resided; counsel for defendants saying to the court that they did not desire a continuance of the cause for the term, provided they could obtain the attendance of these witnesses at a later day of the court. Thereupon the court set said cause for hearing on the tenth day of the term. And upon the representation of the accused that they were poor, and that their witnesses were poor, and had not the means to pay passage from Breathitt county, where they lived, to Knox county, the court made an order directing that these witnesses should be summoned and arrested on behalf of the commonwealth, and brought to court. This warrant of arrest, however, was never issued, and never in fact sent to the sheriff of Breathitt county. But, as is shown by an affidavit in the cause, the judge of the court-not in open court, but at night, and at the instance of the attorneys for the prosecution, and without the knowledge or consent of the accused or their counsel-appointed one Burton, a witness for the commonwealth, and one Mann, a resident of Breathitt county, as special bailiffs to execute this process. It appears from the affidavit of Burton that on going to Jackson, the county seat of Breathitt, he found Mann, and had him duly sworn, and that then, having an arrangement with Marcum to furnish tickets by railroad to such witnesses as they might obtain, they summoned for the defendants 13 witnesses; that, of these, 3 were sick, and the family of another was sick, but that they did in this way have present, at the time and place agreed on with Marcum, 9 of the witnesses of the defense, but that Marcum failed to appear and furnish the transportation as he had agreed to do. And the special bailiff says that, having no money himself to pay the fare of the witnesses, and the day of trial approaching, he did not place the witnesses under arrest, but abandoned them, and returned to court to make his report; that only a single witness was secured by this arrangement.

On the calling of the cause on the tenth day of the term, the attorney for the commonwealth again announced "Ready," and the defendants, "Not ready;" and, being required by the court again to show cause, they filed another affidavit, reciting the absence of some 27 witnesses, the materiality of whose evidence in their defense was duly set forth, together with the facts developed in their efforts to procure their attendance since the former calling of the cause, as recited herein. And defendants again asked a continuance. Upon an examination of this last affidavit, the commonwealth's attorney agreed that the same might be read upon the trial of the cause as the testimony of the absent witnesses; the counsel for accused insisting, if compelled to try on this affidavit, that the state should admit absolutely, as true, the facts stated in this affidavit. This the court overruled. Exceptions were duly taken, and the court overruled the motion for a continuance. Exceptions were duly taken. Thereupon an examination of jurors, touching their competency, commenced and five being obtained who were qualified, but not finally passed upon or accepted, an adjournment was had until the next morning. Whereupon, on the assembling of court next day, defendants offered to file an additional and amended affidavit reaffirming the one filed the day before, and setting forth in their amended paper quite a number of (some 16) witnesses not before presented to the court, and whose testimony they said they had discovered since the filing of their former affidavit. Most of the witnesses named in this amended affidavit lived in and near Hazard, the place of the killing. "And by the testimony of six, at least, of them, defendants say they can prove such facts as will clearly show that five of the six of seven witnesses for the commonwealth who will undertake to identify Joseph Adkins as the man who did the shooting, and some of whom identify Fields as the man who was present at the time, were not in fact present at the time of this shooting, and that they did not and could not possibly have seen, at the time and place they claim to have seen, the person who did this shooting." So clearly and distinctly is this evidence embraced in this amended affidavit opposed to the testimony of the witnesses who testify for the commonwealth to the killing, that their materiality cannot for a moment be questioned. If the testimony as contained in this amended paper offered is true, then it greatly impairs the most important and direct testimony of the witnesses for the commonwealth who testify to the killing, and who undertake to identify Adkins and Fields as the parties who participated in same. Quite a number of the witnesses named in the last paper, it is said, will contradict testimony of commonwealth's witnesses tending to connect these defendants with the killing and same are clearly contradictory of the evidence of the commonwealth, as afterwards appears in the trial. No inconsiderable part of the testimony of the commonwealth tending to identify Adkins and Fields consisted of the evidence of certain parties who went in pursuit of the parties who did the shooting, and who claimed that, in a fight with said parties on that day, two of them shot and wounded Fields, and at the same time claimed to recognize Adkins as being with Fields in the fight; and yet by an examination made only two days later, by the friends of Combs, who was killed, of the person of Fields, it was clearly shown that he had not been wounded at all. In this amended paper it was stated that the reason that neither of the defendants had been to Hazard since this killing, to hunt up evidence in their behalf, and to prepare their cause, was that the state of feeling against them in that...