Brewer v. Vallandingham

• Decision Date: 15 November 1929
• Citation: 21 S.W.2d 831,231 Ky. 510
• Parties: BREWER v. VALLANDINGHAM, Circuit Judge.
• Court: Kentucky Court of Appeals

21 S.W.2d 831

231 Ky. 510

BREWER v. VALLANDINGHAM, Circuit Judge.

Court of Appeals of Kentucky

November 15, 1929

Original application by Thomas O. Brewer for a writ of prohibition prohibiting J. G. Vallandingham, Circuit Court Judge of the Fifteenth Judicial District, from passing on motion to remand prosecution to the Boone circuit court for trial. Application denied.

Henderson Estes, of Middletown, Ohio, and A. F. Byrd, of Lexington, for plaintiff.

J. W Cammack, Atty. Gen., Ward Yager, Commonwealth Atty., of Warsaw, B. H. Riley, Co. Atty., of Burlington, and J. L Vest, of Walton, for defendant.

DIETZMAN J.

This is an original proceeding in this court, wherein the plaintiff Thomas O. Brewer, asks for a writ of prohibition prohibiting Hon. J. G. Vallandingham, the circuit judge of the Fifteenth judicial district of Kentucky, from passing on a motion made by the commonwealth in a prosecution now pending in the Owen circuit court against the plaintiff to remand that prosecution to the Boone circuit court for trial, and from remanding that prosecution as asked.

The plaintiff, together with Leroy Milton and Charles Keplinger was indicted for the murder of W. L. Johnson at a special term of the Boone circuit court held in January, 1929. The case was called for trial at a special term of that court held in March, 1929. A severance being requested, Milton was tried first, convicted, and sentenced to imprisonment for life. The other two cases were continued to the regular April term of the court. The killing of Johnson had, as appears from the newspaper articles filed in this case, caused widespread indignation in Boone county, and the infliction upon Milton of the punishment of life imprisonment, instead of that of death, had been particularly displeasing, at least to the publishers of the newspapers, which circulated criticisms of the jury which had tried him.

When Brewer's case was called for trial at the April term of the court, he seasonably moved for a change of venue. His motion was supported by the necessary affidavits. The commonwealth objected to the motion and filed counter affidavits. The court overruled the motion and proceeded with the impaneling of the jury. The regular panel and two special venires being exhausted without a jury being secured, the court set aside its order overruling the motion for a change of venue and transferred the case to the Owen circuit court for trial. At the July term of the last-named court, the plaintiff was tried, the trial resulting in a hung jury. On inquiry from the court, it developed that the jury stood 11 for acquittal and 1 for conviction. Immediately after the discharge of the jury, the commonwealth moved the court to remand the case to the Boone circuit court for trial. The court overruled the motion and continued the case to the October term of the Owen circuit court for a second trial. Just before the commencement of the October term of the Owen circuit court, the commonwealth served the plaintiff with notice that it would, when court convened for that term, again move the court to remand this case to the Boone circuit court for trial, and it is this motion which we are asked to prohibit the defendant from considering.

A number of affidavits are filed with the plaintiff's petition herein, showing that the state of feeling as it existed when his motion for a change of...