Benge v. Commonwealth

• Decision Date: 03 December 1943
• Citation: 176 S.W.2d 131,296 Ky. 82
• Parties: BENGE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

176 S.W.2d 131

296 Ky. 82

BENGE v. COMMONWEALTH.

Court of Appeals of Kentucky

December 3, 1943

Appeal from Circuit Court, Clay County; Franklin P. Stivers, Judge.

Ernest Benge was convicted of feloniously burning an unoccupied dwelling house, and he appeals.

Reversed.

William Lewis & Son, of London, for appellant.

Hubert Meredith, Atty. Gen., and Frank A. Logan, Asst. Atty. Gen for appellee.

SIMS Justice.

The defendant, Ernest Benge, was convicted of the offence of feloniously burning an unoccupied dwelling house belonging to Dense Philpot and his punishment fixed at confinement in the penitentiary for two years. He assigns four errors in seeking to reverse the judgment: (1) The judge should have vacated the bench; (2) the court should have granted a change of venue; (3) the jury were permitted to separate during the trial; (4) a directed verdict should have been given in his behalf.

In addition to the indictment upon which he was convicted, there were three other indictments in the Clay Circuit Court charging defendant and certain others with the murder of three men. All four indictments were set for trial at the special December 1941 term and on the first day thereof all defendants united in a motion asking Hon. Franklin P. Stivers, Judge of the Clay Circuit Court, to vacate the bench and in support thereof filed their affidavits.

The affidavit of defendant was quite lengthy and we will only attempt to give the substance of its material parts. It recites that defendant had been held under bond to answer any indictments which might be returned against him at the September 1939 term charging him with the murder of Stanley Young and Woodrow Feltner; that he was not indicted and his bond was discharged. He then appeared before the grand jury as a witness against Steve Greer, which resulted in indictments charging Steve with the murder of Young and Feltner. On the first Monday in January, 1940, Hon. Franklin P. Stivers and Hon. Willie Rice became the respective Judge and Commonwealth Attorney of the Clay Circuit Court, the former being a 'blood cousin of recognizable degree' and the latter a brother-in-law of Steve Greer; that at the January 1940 term of the Clay Circuit Court Steve's brother, Monroe Greer, appeared before the grand jury with the result that three indictments were returned against defendant and others charging them with the murder of Young Feltner and Ben Philpot. At the September 1941 term T. T. Burchell, a brother-in-law of Judge Stivers and the attorney representing Steve, filed motions to quash the indictments against Steve which were sustained, and the matters were ordered re-referred to the grand jury for that term; that Burchell and the Commonwealth Attorney knew defendant was then out of the State and could not appear before the grand jury as a witness against Steve and the matters were never re-referred to any other grand jury. Defendant was extradicted and upon being brought into court Judge Stivers without motion being made by the Commonwealth Attorney ordered him held without bond. Hon. A. W. T. Manning, a former Judge of the Clay Circuit Court and a brother-in-law of Judge Stivers, was employed to assist in the prosecution of defendant. That on account of all these facts and circumstances Judge Stivers could not and would not give defendant a fair trial. The affidavit of the other defendants adopted the allegations contained in the affidavit of Ernest Benge.

Under our practice the truthfulness of the facts stated in an affidavit filed in support of a motion to vacate cannot be questioned by the judge, but it must contain facts from which 'it may be readily determined that the judge sought to be removed is so prejudiced against the litigant as to make it reasonably apparent that he cannot with his human nature give the affiant a fair and impartial trial'. Lester v. Com., 250 Ky. 227, 62 S.W.2d 469, 471; Givens v. Lord Crawshaw, 21 Ky.Law. Rep. 1618, 55 S.W. 905; Chreste v. Com., 178 Ky. 311, 198 S.W. 929; Neace v. Com., 243 Ky. 149, 47 S.W.2d 995. All that the defendant's affidavit shows is the judge is a cousin of the principal prosecuting witnesses against defendant, and ordered him held without bond upon being returned as a fugitive from justice. But a subsequent order shows that the judge fixed a reasonable bond which defendant executed and was released.

Tested by the above rule, the affidavit contained no fact showing prejudice by Judge Stivers against defendant and he correctly overruled the motion to require him to vacate the bench. This case is not parallel with Com., etc., v. Howard, Judge, 267 Ky. 287, 102 S.W.2d 18, where the affidavit averred that Judge Howard was a cousin of the defendant. And for the purpose of this motion it is immaterial that the Commonwealth Attorney was a brother-in-law of the Greer boys, or that the attorney defending them, as well as the one assisting in the prosecution of the defendant, were each brothers-in-law of Judge Stivers.

After due notice all defendants on December 4, 1941, filed their verified petition for a change of venue in conformity with KRS 452.220. The petition incorporated the averments contained in the affidavit for a change in venue concerning the relationship of the circuit judge and the commonwealth attorney to Steve Greer, and that Steve's attorney, Hon. T. T. Burchell (then county attorney elect), and the Hon. A. W. T. Manning, employed to assist in the prosecution, were each brothers-in-law of the circuit judge; also as to what transpired concerning the quashing of the indictments against Steve and returning indictments against defendant. The petition and supporting affidavits named some twelve families who have been engaged in a violent feud in Clay County during the preceding seven or eight years in which more than fifty persons have been killed and more than twenty dwelling houses and more than twenty-five barns have been burned feloniously and a number of inhabited dwellings shot into. Among the families engaged in this feud are the Philpots, the Greers and the Benges. Ernest had two brothers killed in the feud and Alex Hampton while in the home of Ernest's father, Bill Benge, was shot and killed 'from the bushes', and Bill had four barns maliciously burned. Ernest, Earl and Chester Benge, together with two of the Cupps then stood indicted for the murder of Bill Philpot, a son of Dense. Judge Stivers had noticed 'certain parties' coming into the courtroom armed and he posted a deputy sheriff at the door to search everyone entering the room; that due to the feud, jurors would be intimidated and witnesses would be afraid to testify or even appear in court. That due to the conditions existing defendant could not receive a fair and impartial trial.

Hon Sylvester Little made an affidavit to the effect that in 1938 he and Hon. W. E. Begley were the respective Commonwealth Attorney and Judge of the Twenty-seventh Judicial District which included Clay County. At that time Ernest Benge stood indicted for feloniously burning an unoccupied dwelling belonging to Dense Philpot (the record does...