Bradley v. Commonwealth

• Citation: 204 Ky. 635,265 S.W. 291
• Parties: BRADLEY v. COMMONWEALTH.
• Decision Date: 03 October 1924
• Court: Court of Appeals of Kentucky

265 S.W. 291

204 Ky. 635

BRADLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 3, 1924

Appeal from Circuit Court, Allen County.

Sank Bradley was convicted of murder, and appeals. Reversed for new trial.

Thurman B. Dixon and Rodes & Harlin, all of Bowling Green, and N. F Harper, F. R. Goad, and W. D. Gilliam, all of Scottsville for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal and Gardner K Byers, Asst. Attys. Gen., for the Commonwealth.

THOMAS J.

The appellant Sank Bradley, and Tom Hughes, were jointly indicted in the Allen circuit court charged with the offense of willfully murdering Will Willoughby. On his separate trial appellant was sentenced to the penitentiary for 21 years, and the judgment pronounced on that verdict was reversed in an opinion in 201 Ky. 413, 257 S.W. 11, because of the failure of the court to properly instruct the jury. On his second trial he was again found guilty and imprisoned in the state penitentiary for his life, and he is here with this appeal seeking a reversal of the judgment pronounced on that verdict after his motion for a new trial was overruled.

Numerous grounds are relied on as reversible errors occurring at and during the second trial, but the only ones argued here which we think deserve consideration are: (1) The refusal of the court to grant a change of venue upon a motion made by defendant for that purpose pursuant to notice, as is provided for by section 1109 of our present statutes; (2) error in the instructions given to the jury; (3) that the verdict is flagrantly against the evidence; and (4) improper and prejudicial argument of counsel for the commonwealth--each of which we will dispose of as briefly as possible in the order named.

1. The substance of the ground relied on in support of the motion for a change of venue was that public sentiment throughout Allen county was so crystallized against defendant as to create a universal bias and prejudice against him, so that it would be impossible for him to have a fair and impartial trial in that county. The petition was supported by about 100 affidavits of various citizens of the county of almost every profession and avocation in life, and they each state that they were acquainted with the feeling throughout the county against defendant, and that according to their opinion, as gathered from conversations and talk with the people generally, it would be impossible for him to obtain a fair trial in that county. There were no counter affidavits filed by the commonwealth, but it introduced on the hearing of the motion some 18 or 20 witnesses who it is claimed contradicted plaintiff's affidavit and those of all of his witnesses, and that the witnesses for the commonwealth stated, in substance, that defendant could obtain a fair trial in the county. But the majority of those witnesses on cross-examination testified, in substance, that they did not propose to speak as to the opinion and sentiment of others than themselves, and that so far as they personally were concerned it was their belief that defendant could obtain a fair trial in the county, notwithstanding some and perhaps a majority of them testified that there was great indignation at the time of the commission of the homicide and reports of a mob were circulating throughout the county, and the county judge, when defendant was arrested, sent him to Bowling Green for safe-keeping and where he was lodged in jail. They also testified that while that sentiment may have subsided to some extent, yet the same rumors have been in circulation since that time. It is shown by uncontradicted affidavits that throughout the second trial, from the judgment in which this appeal is prosecuted, not only the courtroom but the streets around the courthouse and its halls and approaches were crowded with people, and that on the outside of the courtroom there was considerable noise and confusion, to such an extent that the judge, at one stage of the trial, was compelled to go to the front door of the courtroom and address the crowd so as to quiet its clamor. And it is also shown that throughout the trial approving demonstrations were made in the courtroom over every occurrence that the members of the audience construed as detrimental to the defendant.

By reference to the former opinion, it will be seen that the killing occurred at a spring in the town of Scottsville, but it is not shown whether it was a public or privately owned one; but whether the one or the other, the people generally had access to it for procuring drinking water for themselves and their stock, and there was provided there a concrete trough from which stock might be watered, and we take it from the record that such use of the spring had been of long standing. Appellant and his codefendant lived in Scottsville, and Willoughby was a farmer living in the country some 8 or 10 miles therefrom. According to the first account of the killing, and as it appeared on the surface, the two defendants in the indictment had undertaken to prevent the deceased, a country man, from using the water flowing from the spring, and this seemed to have become a widely spread impression and created an almost universal prejudice against defendant because he, a town man, was endeavoring to prevent the deceased, a country man, from exercising his right to use the water of the spring, and that sentiment became so strong that rumors of a mob were frequently heard. It was freely admitted by all of the witnesses for the commonwealth on the trial of the motion for a change of venue that a jury could not be obtained in Allen county, and some of the witnesses testified that the sentiment first engendered against defendant was about the same at the second trial as it was originally. One of the commonwealth's witnesses, in answering the question propounded to him, said: "I couldn't say. I take it he could get as fair a trial as any other man could under the circumstances." And another one said that there was danger of a mob if defendant should be acquitted, and, on being asked, "What did you hear about the mob?" answered: "Just talked about if they didn't give him a fair trial a mob might get him." It is therefore apparent from what we have stated, supplemented by what we have not stated though appearing in the record, that a great number of the witnesses introduced by the commonwealth in opposition to the motion by no means met the issue or contradicted the large number of affidavits filed by defendant in support of his motion. So that, the showing made on the trial of the motion was in substance this: That defendant and about 100 citizens of the county of the character and standing hereinbefore indicated swore positively that he could not obtain a fair trial in the county; that the feeling was so strong against him as to produce indiscriminate talk of a mob, so much so that the county judge, in order to provide a place of safety for defendant, sent him to Bowling Green; that the same feeling still prevailed in the county to such an extent that there would yet be a mob formed unless defendant received what the members of the mob called a fair trial, and which necessarily meant conviction.

Section 11 of the Constitution, and the section of the statutes enacted pursuant thereto, were each bottomed upon the policy of the law that not only the defendant in a criminal prosecution, but the commonwealth as well, should receive a fair trial at the hands of an unbiased and unprejudiced jury; and that if such a trial could not be obtained in the venue of the commission of the offense, it should be removed to a place where it could be so obtained, all of which was pursuant to the underlying determination that justice should prevail in a court of justice, and that neither life, blood, or liberty shall be taken from the citizen except through a fair and impartial trial, nor should the commonwealth be deprived of its right of just punishment except through such a trial.

The practice upon such motions, as well as this court's authority to review the judgment of the trial court in overruling them, has been before this court in a great number of cases, and it has been firmly settled that the burden is upon the defendant to at least make out a prima facie case entitling him to the relief, and that such burden is not discharged by the mere filing of the prescribed application. Wilkerson v. Commonwealth, 88 Ky. 29, 9 S.W. 836, ...