Commonwealth v. Davidson
| Decision Date | 24 January 1891 |
| Citation | 91 Ky. 162,15 S.W. 53 |
| Parties | COMMONWEALTH v. DAVIDSON. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Clark county.
P. W Hardin, Atty. Gen., and J. P. Marrs, for the Commonwealth.
The appellee was indicted in the Perry circuit court, charging him with the crime of murder in said county. The commonwealth's attorney for said district, pursuant to the act of the legislature, approved ----- day of ----- 1890, made a written statement that there existed in said county such lawlessness by the friends, relations, and sympathisers of the appellee that the officers in said county were prevented from discharging their duties, and which would deter the trial jury from rendering a fair and impartial verdict in said case; also that the same condition existed in the counties of Bell, Leslie, Harlan, Knox, Clay, Jackson Owsley, Estill, Powell, Wolf, Breathitt, Knott, Perry, and Letcher. Thereupon, the court ordered a change of venue to the Clark circuit court. The case having been transferred to the latter court, the commonwealth's attorney for that district moved the court to remand the case back to the Perry circuit court, upon the ground that the act, authorizing said change, was unconstitutional. So, the constitutionality of the act is the only question to be decided. The sections of the constitution upon that subject are as follows: Article 2 § 38. "The general assembly shall not change the venue in any criminal or penal prosecution, but shall provide for the same by general law." Article 13, § 12. The accused has a right "to a speedy public trial by an impartial jury of the vicinage." Section 38 (quoted) is mandatory upon the legislature to provide, by general law, for the change of venue, as well on behalf of the commonwealth as on behalf of the accused. But does section 12, (quoted,) by providing that the accused shall have the right to a trial by an impartial jury of the vicinage, confine the right of the commonwealth to provide for a change of venue on behalf of the accused only? The greater likelihood of the accused being able to get his witnesses before the jury, and at less expense, and of the jury's knowledge of their good character, as well as that of his own good character, if one he has established, were, doubtless, the considerations that induced the adoption of said provision. But does said provision exclude the commonwealth from taking a change of venue under any and all circumstances? If it does, said section 38 is rendered nugatory, so far as the commonwealth is concerned, by implication. For the reasons indicated, it was certainly the intention to secure to the accused the right to an impartial trial by a jury of the vicinage, or county, and to prohibit the commonwealth from changing the trial to another county, and thus annoy and harass the accused, unless it was necessary to preserve and enforce its authority. The two sections being thus construed,...
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...111 Mo. 526; State ex rel. v. Wear, 129 Mo. 619; People v. Connor, 142 N.Y. 130; Coal v. Doolittle, 54 W.Va. 210, 227; Commonwealth v. Davidson, 91 Ky. 162; Dimes Grand Junction Canal (Eng.), 3 House of Lords Cases, 793. The State has the right, when the judge is prejudiced, to a change of ......
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