Carnes v. Commonwealth
| Decision Date | 19 December 1947 |
| Citation | 306 Ky. 55 |
| Parties | Carnes v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Proper determination of questions raised by motion for change of venue because of inability to secure fair and impartial trial in county depends on facts and circumstances.
2. Criminal Law. — Trial court is vested with a sound discretion in determining question raised by motion for a change of venue and where there is evidence both in support and in resistance of motion, determination of trial court will not be disturbed unless it appears with reasonable certainty that there has been an abuse of discretion.
3. Criminal Law. — In prosecution for malicious cutting and wounding prosecuting witness with intent to kill, evidence did not warrant granting defendant's motion for a change of venue on ground that he could not secure a fair and impartial trial in county, notwithstanding prosecuting witness was a member of the jury panel for the term, in absence of showing that this fact influenced jury selected to try case.
4. Homicide. — In prosecution for malicious cutting and wounding prosecuting witness with intent to kill, evidence offered by defendant to show that prosecuting witness was guilty of improper conduct towards defendant's wife for purpose of showing provocation was properly excluded where incident allegedly occurred about three months prior to difficulty and defendant knew of alleged incident only from hearsay.
5. Criminal Law. — In prosecution for malicious cutting and wounding prosecuting witness with intent to kill, improper statement of prosecuting attorney in closing argument to jury that he was familiar with records of defendant and his wife was not prejudicial to defendant where defendant admitted on cross-examination that he had been convicted of a felony and defendant's wife testified that she had been convicted of a felony.
6. Criminal Law. — Attorney for Commonwealth should adhere to facts shown by proof and should avoid expressions of personal opinion not based on evidence.
7. Criminal Law. — It is not every improper statement made by attorney for Commonwealth in a criminal prosecution that is prejudicial.
Appeal from Menifee Circuit Court.
Lewis A. White and Earle Fowler for appellant.
Eldon S. Dummit, Attorney General, and H.K. Spear, Assistant Attorney General, for appellee.
Before John J. Winn, Judge.
Affirming.
Walter Carnes has appealed from a judgment sentencing him to imprisonment for a term of three years for the crime of malicious cutting and wounding with intent to kill. The evidence for the Commonwealth was to the effect that appellant made an unprovoked assault upon Wade Cannoy with a knife. Appellant testified that Cannoy made a disparaging remark about Mrs. Carnes as he passed him on the street, and that he turned, walked back four or five steps and struck Cannoy, who then ran up the street. Appellant followed him, striking at him with a knife. Cannoy received several cuts on his back, but none of them was serious. Cannoy denied that he made any statement concerning appellant's wife, and Gordon Bach, who was standing on the sidewalk talking to Cannoy when the attack was made, heard no such statement. Appellant is a resident of Fayette County and Cannoy is a resident of Menifee County. The difficulty occurred on the main street of Frenchburg in Menifee County.
It is first insisted that the court erred in overruling a motion for a change of venue. In the application for a change of venue it was stated that the prosecuting witness, Wade Cannoy, was widely connected by blood relationship and marriage to most of the prominent families of Menifee County; that the defendant was a stranger in the county; and that the facts in the case had been widely discussed with the result that a deep-seated prejudice against the defendant existed. It was also stated that Cannoy was a member of the petit jury for the December, 1946, term of the Menifee Circuit Court, the term at which appellant was tried. An affidavit signed by Frank Hale and Felix Tackett was filed in support of the application for a change of venue. The affiants stated that they were familiar with the state of...
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