Eastridge v. Commonwealth

• Decision Date: 02 June 1922
• Citation: 195 Ky. 126
• Parties: Eastridge v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 126

195 Ky. 126

Eastridge v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 2, 1922.

Appeal from Bell Circuit Court.

JOHN HOWARD and J. G. ROLLINS for appellant.

CHAS. I. DAWSON, Attorney General, THOS. B. McGREGOR, Assistant Attorney General, T. G. ANDERSON and B. B. GOLDEN for appellee.

OPINION OF THE COURT BY JUDGE CLARKE — Reversing.

At the May term, 1920, of the Bell circuit court the appellant was charged by indictment with the murder of Chad Woodward. At the February term, 1922, of that court he was tried, convicted and his punishment fixed at life imprisonment in the penitentiary.

Hon. J. G. Forester was commonwealth's attorney for the district when the killing occurred, and as such signed the indictment charging defendant with the crime of murder; he later became judge of the district and presided at the trial.

The first ground relied upon for reversal is the refusal of Judge Forester to vacate the bench. Section 968 of Kentucky Statutes provides for a trial before a special judge when the regular judge of the circuit court fails to attend or cannot properly preside in any action, proceeding or prosecution, "or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial."

Construing this statute, we have uniformly held that the truth of facts alleged in the defendant's affidavit can not be assailed, and that for this reason he must do more than simply state in his affidavit his belief that the judge will not afford him a fair and impartial trial, and must state not mere conclusions but facts which necessarily show prejudice or bias by the judge sufficient to prevent him from fairly and impartially trying the case. Sparks v. Colson, 109 Ky. 711, 60 S. W. 540; Powers v. Commonwealth, 114 Ky. 237, 70 S. W. 644; Wather v. Commonwealth, 133 Ky. 94, 116 S. W. 339; Hargis v. Commonwealth, 135 Ky. 578, 123 S. W. 239; Tolliver v. Commonwealth, 165 Ky. 312, 176 S. W. 1190; Chreste v. Commonwealth, 178 Ky. 311, 198 S. W. 929.

The only facts stated in the affidavit which appellant filed in support of his motion are that the killing occurred while the regular judge was commonwealth's attorney and as such he signed the indictment against the defendant, to which is added, "and was very vigorous in the prosecution of this case, as he was in the prosecution of all cases of like manner" during the time he was commonwealth's attorney for the district.

The Code does not require the commonwealth's attorney to sign an indictment (Sims v. Commonwealth, 13 S. W. 1079, 12 Ky. L. R. 215; Brown v. Commonwealth, 135 Ky. 635, 117 S. W. 281), but as we know judicially he does so in nearly every instance although in most cases he knows nothing whatever about the facts, as the county attorney rather than the commonwealth's attorney for the district usually attends to all preliminary matters connected with the prosecution and assists the grand jury in securing the presence and in the examination of witnesses. Unless, therefore, facts are stated showing that in a particular case the commonwealth's attorney has examined the witnesses or otherwise actively participated in the prosecution before it reaches the circuit court for trial on an indictment, the presumption would be that he had not done so, even though the indictment was signed by him.

The allegation that he was very vigorous in the prosecution of this case, as he was in all like cases, would indicate that this case had taken the usual course and may mean anything that the affiant considered vigorous action. It is therefore very plainly his own conclusions simply, and under the cases supra must be disregarded.

This leaves for determination under this assignment only whether or not the fact the crime was committed while the judge was commonwealth's attorney, and that as such he signed the indictment returned by the grand jury, disqualified him from presiding at the trial.

By the constitution or statutes in most states a judge who has been of counsel in a case, civil or criminal, pending before him, is disqualified to act therein, 23 Cyc. 586; 15 R. C. L. 534, but not so in this state; and while there is some conflict in the authorities as to the rule in the absence of constitutional or statutory regulation, this court is committed to the view that in a criminal case the fact that the regular judge while commonwealth's attorney drew or signed the indictment does not disqualify him from trying the case.

In fact, in Hargis v. Commonwealth, supra, a murder case, it was held that a statement by the judge while commonwealth't attorney that his purpose was "to camp upon the defendant's trail and put him where he belonged," added to the facts we have here, did not disqualify him.

Whatever may be thought of the soundness of the extent to which that case goes, we think reason supports our rule as applied to the facts of this case. Ordinarily a commonwealth's attorney for the judicial district, assisted as he is by the attorneys for the several counties in his district, can have but slight information of or connection with any case until after the indictment is returned. If he proves efficient as commonwealth's attorney he is quite frequently elected as judge when his term as commonwealth's attorney expires; a great many indictments drawn by him or in his name will necessarily be left over for trial after he becomes judge, with which his connection has been merely...