Com., by Cooper v. Howard
| Decision Date | 16 February 1937 |
| Citation | 102 S.W.2d 18,267 Ky. 287 |
| Parties | COMMONWEALTH, by COOPER, v. HOWARD, District Judge. |
| Court | Kentucky Court of Appeals |
Original proceeding in the Court of Appeals by E. R. Cooper Commonwealth's attorney, against J. Brack Howard, as Judge of the Twenty-Eighth Judicial District of Kentucky, for a permanent writ of prohibition to prevent the defendant from presiding at a trial of a certain case pending in Magoffin circuit court in which the Commonwealth of Kentucky is plaintiff.
Permanent writ of prohibition granted.
E. R Cooper, of Salyersville, B. M. Vincent, Atty. Gen., and J. W Jones, Asst. Atty. Gen., for petitioners.
A. F Byrd, of Lexington, and T. J. Arnett, of Salyersville, for respondent.
STANLEY Commissioner.
After the indictment of Charlie Howard and Bruce Howard, charging them with the murder of Jimmie Allen in Magoffin county, the Commonwealth's attorney for the district embracing the Magoffin circuit court seasonably filed a motion that the Honorable J. Brack Howard, judge of that court, vacate the bench. One of the grounds was that he is a cousin of the defendants. Although the motion was supported by an affidavit stating facts, the judge declined to step aside. Thereupon, as an original proceeding in this court, a petition has been filed by the Commonwealth asking that a writ of prohibition be issued restraining Judge Howard from sitting at the trial. The same grounds are alleged and several affidavits have been filed in support of the petition. Judge Howard has filed a response, supported by affidavits, in which he denies or explains some of the allegations of the petition. However, he states that he is a third cousin of the defendant, Charlie Howard, and fourth cousin of the defendant, Bruce Howard. He was also a third cousin of the deceased Allen. He had been and is friendly to all the parties and states that he has no interest or feeling that would prevent him from giving both the Commonwealth and the defendants a fair trial.
The defendants in the indictment have also filed a petition asking to be made parties defendant in this proceeding. They deny some of the accusations contained in the petition of the Commonwealth and would adopt the answer and response of Judge Howard as their own. They pray that the Commonwealth's petition be dismissed.
In the event there should be a verdict of acquittal, the Commonwealth is without adequate remedy if the trial judge has...
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