Brunner v. Com.
| Decision Date | 11 June 1965 |
| Citation | 395 S.W.2d 382 |
| Parties | Richard BRUNNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
John D. Miller, Owensboro, for appellant.
Robert Matthews, Atty. Gen., David A. Schneider, Asst. Atty. Gen., Frankfort, for appellee.
Richard Brunner was found guilty on two counts of knowingly receiving stolen property in violation of KRS 433.290. His punishment was fixed at confinement in the penitentiary for three years on each count. He appeals.
Before the first and the second trial of this case, appellant petitioned for a change of venue. In conformity with KRS 452.220(1), he filed notice in writing with the circuit court clerk of the time when his application in this respect would be made. This notice was directed to be and was served upon the Commonwealth's attorney. Thereafter, on the day fixed by the notice, he filed his verified application, together with two affidavits. See KRS 452.220(2). The affiants in both affidavits stated they were persons 'of good character, not kin to, or of counsel for, the defendant.' Attached to the application as exhibits, and referred to therein, were 19 news items which had dealt with the commission of the crime. Some of these had done so at some length.
The application recited that the alleged facts upon which appellant's indictment was based, embracing 21 counts, had been given wide-spread publicity through several news media in Daviess County, namely, by commentary over two radio stations and by articles appearing in the Owensboro Messenger & Inquirer, a local newspaper. This publicity, he averred, had tended to create toward him a feeling of bitterness in the minds of the public which was so embedded that it had prejudiced the people of Daviess County against him.
The affiants in the two affidavits stated they were personally 'aware of the extreme animosity, bitterness and prejudice prevailing throughout Daviess County' toward appellant and, because of this feeling, they believed he could not received a fair and impartial trial if his case should be tried in that county. They also said they had read the statements set forth in the application and believed they were true.
It was brought out that Murphy-Miller, Inc., a manufacturer of furniture in Owensboro, whose stolen furniture valued at many thousand dollars appellant was charged with having feloniously received, is an old and established business; and that Mr. Steve Murphy, the president of that company, is a well-known business man in Owensboro and Daviess County.
The Commonwealth filed no counteraffidavits in opposition to the application, nor was any hearing ever had on it; the trial judge merely entered an order denying the application.
A first trial of this case resulted in a hung jury. Thereafter, and before a second trial, upon due notice to the Commonwealth's attorney, an application, similar in all respects to the first, was filed. This was supported by four affidavits, and the averments in each of them were almost identical with those contained in the application.
This latter application, supported by the four affidavits, received the same inattention by the Commonwealth as the first one. The trial court again denied the application without holding a hearing. After the second trial, however, and after appellant had filed his motion and grounds for a new trial, the Commonwealth filed the affidavits of four persons. These documents were aimed at retroactively refuting statements made in appellant's second application and the averments in the four affidavits accompanying it. The Commonwealth's affidavits were similar in context and each affiant therein, after stating he was familiar with the newspaper, radio and television accounts in respect to the offenses of which appellant was charged,...
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State v. Montoya
...court should not now permit the conviction to stand.' See also Yancey v. State, 98 Ga.App. 797, 107 S.E.2d 265 (1959); Brunner v. Commonwealth, 395 S.W.2d 382 (Ky.1965); Manning v. Commonwealth, 346 S.W.2d 755 (Ky.1961); McGee v. State, 200 Miss. 350, 26 So.2d 680 (1946); State v. Shawan, 7......
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Stone v. Com.
...The petition, including the affidavits, was utterly insufficient to require or justify a change of venue. See Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (1965), White v. Commonwealth, Ky., 394 S.W.2d 770 (1965). Appellant contends that the affidavits filed by the Commonwealth were too lat......
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Campbell v. Com.
...having filed the motion supported by affidavits pursuant to KRS 452.220(2), she was entitled to a change of venue. See Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (1965). In Brunner, the trial court was found to have erred by denying the appellant's application for a change of venue where ......
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Whitler v. Com.
...venue motion. Elswick v. Commonwealth, Ky.App., 574 S.W.2d 916 (1978). In addition to the holding of Miller, supra, Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (1965), provided that when the Commonwealth did not file counteraffidavits in opposition to a change of venue application and a he......