Fitzgerald v. Commonwealth

• Decision Date: 14 December 1906
• Citation: 98 S.W. 319
• Parties: FITZGERALD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

98 S.W. 319

FITZGERALD v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 14, 1906

Appeal from Circuit Court, Knox County.

"Not to be officially reported."

Jesse Fitzgerald was convicted of murder in the first degree, and he appeals. Affirmed.

F. D Sampson, for appellant.

N. B Hays, Atty. Gen., Chas. H. Morris, and Lindsay South, for the Commonwealth.

NUNN J.

The appellant, Jesse Fitzgerald, and Amy Sopher, were jointly indicted in August, 1906, at a special term of the Knox circuit court charged with the murder of Martha Broughton and also with conspiracy to commit that crime. On motion of appellant's counsel, he was granted a separate trial which resulted in his conviction as charged, and the death penalty being imposed.

The evidence in this case discloses a most atrocious murder. Without going into the details of this revolting crime with any degree of particularity, it appears that shortly after midnight about the last of June, 1906, Mrs. Broughton was in bed at her home, some 2 1/2 miles from Barbourville, when the appellant entered her room through a window, and there, according to his confessions proved upon the trial, cut his victim's throat, nearly severing her head from her body. He then opened a trunk in the room and took therefrom about $40 in money. There was no eyewitness to the killing, except, possibly, his accomplice, who did not testify; but all the facts and circumstances of the case, together with the confessions of the accused proved upon the trial, show conclusively that he committed the crime.

The first ground urged for reversal is that the court did not have jurisdiction to grant appellant a trial at the special term of the court. We are of opinion that this contention is without merit. Section 964 of the Kentucky Statutes of 1903 authorizes the circuit courts to call special terms in certain emergencies for the trial of civil and criminal cases. The provisions of this section were complied with by the court in calling the special term. This question arose in the cases of White v. Commonwealth, 85 S.W. 753, 27 Ky. Law Rep. 561, and Jett v. Commonwealth, 85 S.W. 1179, 27 Ky. Law Rep. 603, and in construing section 964 we upheld the trials had under circumstances not unlike those in this case.

The second question presented is that the court erred in refusing to grant appellant a change of venue. It appears that appellant filed his petition, which contained all the statements and facts necessary to authorize the change, but it was unsupported by the affidavits of at least two, or any credible housekeepers of the county in which the prosecution was pending. The affidavits, which, in order to avail the appellant, should have been signed by two credible housekeepers, were in blank. No one, it seems, was willing to sign them, and the reason given therefor is that the residents of the county were afraid to do so. From the opinion of the trial judge rendered upon this motion, it is evident that he was impressed with the truth of this statement, but decided that he was powerless to grant the change without the required affidavits. In this he was correct. The requirement that these affidavits must accompany such a petition is statutory. The only power the court has to grant a change of venue is conferred by statute, and as the appellant failed to comply with the provisions of section 1096, which prescribe the form of the affidavits which must accompany the petition, the court correctly overruled his application for the change. This resulted in a hardship to the appellant,...