Allen v. Commonwealth

• Decision Date: 08 February 1916
• Citation: 182 S.W. 176,168 Ky. 325
• Parties: ALLEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

182 S.W. 176

168 Ky. 325

ALLEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 8, 1916

Appeal from Circuit Court, Breathitt County.

Elihu Allen was convicted of murder, and he appeals. Reversed, with directions.

Hazelrigg & Hazelrigg, of Frankfort, Ryland C. Musick and Kelly Kash both of Jackson, and A. H. Stamper, of Campton, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

On August 7, 1915, Grover Blanton was shot and wounded by Elihu Allen, the appellant, and died from the effects of the wounds a few hours afterwards. On the same day Allen was placed in the jail of Breathitt county and remained there until his trial. On Monday, August 16th, the grand jury of the county returned an indictment against him, charging him with the murder of Blanton, and his trial was set for and commenced on Thursday, August 19th. On the trial he was convicted, and his punishment fixed at imprisonment for life.

Several grounds are relied on for reversal, but we think it necessary to consider only the grounds relating to the refusal of the court to grant a change of venue or a continuance, and rulings respecting the admission of a dying declaration.

When the case was called for trial on Thursday morning, the day it was set down for trial, the appellant moved the court to grant him a change of venue, and in support of this motion filed his own affidavit and three supporting affidavits. On the hearing of the motion the commonwealth filed the controverting affidavit of W. H. Blanton and introduced four witnesses, and thereupon the motion was overruled. Section 11 of the Constitution provides in part:

"The General Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained."

And so much of section 1109 of the Kentucky Statutes, enacted to give effect to this constitutional direction, as provides for a change of venue on the motion of the accused, reads:

"When a criminal or penal prosecution is pending in any circuit court, the judge thereof shall, upon the application of the defendant or the commonwealth, order the trial to be had in some other adjacent county to which there is no valid objection, if it appears that the defendant or the commonwealth cannot have a fair trial in the county where the prosecution is pending."

The affidavit of the appellant set out:

"That on the 7th day of August, 1915, he was arrested by Gray Haddix, deputy sheriff of Breathitt county, and was incarcerated in the Breathitt county jail, and has there been confined, and is there still confined, since the time of said arrest. That there exists in Breathitt county a state of general public sentiment, opinion, and feeling against this petitioner, due to and by reason of this charge preferred against him, and by reason of and due to the social and political standing, the wide acquaintanceship, extended relationship, and family connections of the deceased man, Grover Blanton, in Breathitt county. * * *

Your petitioner states that the deceased man, Grover Blanton, was a son of Judge W. H. Blanton, of Jackson, Ky. and a deputy sheriff of Breathitt county, acting under and by virtue of the authority of the present sheriff, M. A. Spencer, of Breathitt county; that he was a young man of a very large acquaintance and personal following, and for several years prior to his death had been connected with some of the large corporations of Breathitt county as a peace officer and as a deputy sheriff upon the works of such corporations; that for many years he had been prominent in politics and in business affairs of Breathitt county; that by blood and by marriage he was related to a large portion, and your affiant believes a majority, of the citizens of Breathitt county, and especially to a great number, if not a majority, of the men of Breathitt county qualified for jury service; that his father, Judge W. H. Blanton, is and for many years has been one of the most influential citizens, politicians, and lawyers of Breathitt county, and wields a greater and more powerful influence with the people of Breathitt county, and especially with the jurors of Breathitt county, than any other man in Jackson, or in Breathitt county; that as a politician and as an office seeker in said county Judge Blanton has been invincible, and has for many times held the offices of county attorney and county judge of said county, and that he could and would wield an undue and powerful influence with a jury of this county impaneled in this case; that the deceased man, Grover Blanton, has living in Breathitt county, in all sections of said county, five brothers and two brothers-in-law, to wit, James Blanton, John Blanton, Tilden Blanton, Harrison Blanton, Benton Blanton, Sylvester Howard and Sam Cockrill, all of whom are in a position to and can and will exert and wield a powerful and undue influence prejudicial to this petitioner's interest in any trial of this defendant upon said charge that may be held in Breathitt county; that Blain Short, the captain of the local militia, is a close blood relative, and that as such officer he could and would wield a powerful and undue influence among the people of Breathitt county prejudicial to this defendant; that Sam Cockrill is a deputy sheriff of Breathitt county, and that as such an officer he is in a position such as would enable him to, and that he could, and this affiant believes that he would, exert his great and powerful undue influence prejudicial to this affiant; that as citizens and men of Breathitt county, said brothers-in-law and brothers and hundreds of other blood relatives by marriage, living in all parts and sections of Breathitt county, and in all and about every locality of said county from which jurors might be secured, or could be secured, they are in a position to, and that they could and would, wield a great influence among the masses of people of Breathitt county, and especially the jurors, and those who might be able to qualify as jurors, and that they could prevent, and this affiant believes that they would prevent, him from securing a fair and impartial trial based upon the law and evidence, if such trial was had in Breathitt county; that M. A. Spencer, sheriff of Breathitt county, is a close personal friend and political friend of the family of the deceased man, and that the said deceased and his brother-in-law, S. J. Cockrill, were both deputy sheriffs under said M. A. Spencer, and that said Spencer is deeply interested in, and would be naturally interested in, this prosecution; that he has deputy sheriffs under him in all parts of Breathitt county, and that he could, together with his many deputy sheriffs, and would, wield a powerful influence prejudicial to the rights of this petitioner on the trial of this charge, if held in Breathitt county, and to such an extent that it would be impossible for your petitioner to have a fair and impartial trial in Breathitt county on said charge, as is guaranteed to him by law.

Your petitioner further represents and says that he is reliably informed and believes that there have been plans laid by the friends of the deceased man to take the life of this petitioner since his incarceration in the Breathitt county jail, and that he verily believes that he has been in great danger, and is still in great danger, from great bodily harm and death at the hands of the friends of the deceased man in Breathitt county; and that unless this honorable court takes some steps at once to guard and protect this petitioner that he will be killed and murdered here in Jackson at the hands of men worked up by passion and prejudice over the death of the deceased man, without a true knowledge of the true facts of said killing; and he therefore begs the protection of this honorable court, and of the said commonwealth, until a change of venue can be and is granted, and your petitioner carried to a place of greater safety."

The supporting affidavits complied with the statutory requirements, and no question is made as to the time or manner in which they were presented to the court.

M. S. Crain, a witness for the commonwealth, who was examined in open court before the judge, and whose evidence appears, together with that of the other witnesses for the commonwealth, in a bill of exceptions, on his examination in chief was asked and said:

"Q. What acquaintance have you in Breathitt county among the people? A. Well, I used to know almost every man in it until these late developments, and the newcomers come since the railroad was built. Q. How long have you lived in Breathitt county? A. Twenty-three years. Q. You have intercourse in the transacting of your business with a great many people of the county? A. Yes, sir; from all over the county. Q. You know the Blanton family? A. Yes, sir. Q. You knew Grover Blanton? A. Yes, sir; knew him well. Q. You know the defendant, Allen? A. Well, I think I have seen him, but I am not personally acquainted with him. Q. Mr. Crain, tell the court whether or not in your opinion there is such a feeling or sentiment among the people of Breathitt county as would prevent the defendant, Allen, from having a fair trial in Breathitt county by a jury selected from the people of this county, qualified jurors? A. Well, if he is properly represented by able counsel, I know of no reason why he can't get a fair and impartial trial. Q. Do you know of any feeling or sentiment among the people and those who are qualified for jury service, such a feeling as would prevent him from getting a fair trial? A. No; other than the people, generally speaking, deplore the killing of

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