Greer v. Commonwealth

• Decision Date: 29 May 1901
• Parties: GREER v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

63 S.W. 443

111 Ky. 93

GREER v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 29, 1901

Appeal from circuit court, Marshall county.

"To be officially reported."

James Greer was convicted of the offense of murder, and he appeals. Reversed.

Reed Greer, Oliver & Reed, for appellant.

John G Lovett and R. J. Breckinridge, for appellee.

PAYNTER C.J.

The grand jury returned an indictment against the appellant charging that he had willfully, feloniously, and with malice aforethought killed John Thomas, by compelling him to drink large and unusual quantities of whisky and wine, by beating and bruising him, by burning him with fire, by dragging him on the ground with a rope or strap tied around his neck, and by leaving him helpless and exposed to the inclemency of the cold winter night, so he did then and there immediately die. The court fixed June 25, 1900, for the trial of the case. After that had been done, the appellant gave notice that he would, on the day the case was set for trial, tender his petition and move the court for a change of venue. This notice was served on June 22d, three days before the day fixed for the trial. Pursuant to notice, he tendered a petition asking for a change of venue, and also the affidavits of Philip Darnall, T. R. Riley, and J. M. Cornett residents of Marshall county, not of kin to nor of counsel for defendant, who stated that they were acquainted with the public opinion in Marshall county, and they verily believed the statements in defendant's petition were true. The petition and affidavits contained the statements made essential by the statute, to which we will advert. The court refused to allow the notice, petition, or affidavits to be filed, and never passed upon the motion for a change of venue, nor did it give the defendant an opportunity to offer testimony on the question which would have been raised by the filing of the petition and a denial by the commonwealth that he was entitled to a change of venue. Section 1109, Ky. St., makes it the duty of the court to order the trial to be had in some other adjacent county, to which there is no valid objection, if it appears that the defendant cannot have a fair trial in the county where the prosecution is pending; and, if the judge is satisfied that a fair trial cannot be had in the adjacent county, he may order the trial to be had in the most convenient county in which a fair trial can be had. By the provisions of section 1110, Ky. St., the applications by the defendant must be made by a petition in writing, verified by him; and he must produce and file the affidavits of at least two credible persons, not of kin to nor of counsel for defendant, stating that they are acquainted with public opinion of the county, and they verily believe the statements of the petition are true. Under this section reasonable notice in writing of the intended application must be given. It is further provided in that section that the application must be made and determined in open court, during a regular or called term, and the court shall, on the motion, hear all the witnesses that may be produced by either party, and from the evidence determine whether or not the applicant is entitled to a change of venue. If the defendant gives a reasonable notice of his intended application, and tenders the petition and affidavits required by the statute, and there is no countervailing evidence offered, he is entitled to a change of venue. It was held in Higgins v. Com., 94 Ky. 54, 21 S.W. 231, that, if the defendant files the requisite affidavits, and no witnesses are introduced by either party, he is entitled to a change of venue; and the court has no discretion in the matter. ...