Griffin v. Commonwealth

• Decision Date: 10 October 1924
• Parties: GRIFFIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

265 S.W. 327

204 Ky. 783

GRIFFIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1924

Appeal from Circuit Court, Harlan County.

Leonard Griffin was convicted of murder, and appeals. Affirmed.

Chas B. Spicer, of Harlan, for appellant.

Frank E. Daugherty, Atty. Gen., and John D. Carroll, of Frankfort for the Commonwealth.

CLARKE J.

Appellant was convicted of murder, and the death sentence imposed. For reversal, it is urged that the court erred: (1) in failing to grant a change of venue; (2) in denying a continuance; (3) in admitting incompetent evidence; and (4) in instructing the jury.

The killing occurred at about 11 p. m. on March 31, 1924, and on the next day appellant was arrested, indicted, brought into court, and his case set for trial on April 4th. At that time he had not employed counsel to defend him, but when asked if he was able to do so said he was, and subp nas were issued for his witnesses and placed in the hands of the sheriff. Upon the next day, April 2d, he was again brought into court and announced that he was unable to employ counsel, and asked the court to appoint W. A. Brock, a local attorney, to defend him, which was done, and Brock accepted the appointment. On April 3d C. B. Spicer and F. F. Acree were employed by friends of the defendant to defend him, which fact was made known to the court on the morning of April 4th, when the case was called for trial, and Brock was then permitted to retire from the case, which he did. Thereupon defendant's employed counsel moved for a change of venue, and, when that motion had been overruled, they asked that the trial of the case be postponed until some day in the following week, which motion was also overruled, and it is earnestly insisted that in each instance the court committed reversible error.

In support of the motion for a change of venue, defendant filed affidavits of himself and two supporting witnesses, as is required by law. In these affidavits it is asserted that the decedent was a popular and influential man, and widely related by blood or marriage to many prominent citizens of the county; that the newspapers of the county had published articles, and friends of the decedent had circulated reports, representing that defendant assassinated decedent; that as a result thereof public sentiment was extremely antagonistic to the defendant; that friends and kinsmen of the deceased had made threats of lynching the defendant, and that they would shoot him in the courtroom if a verdict should be returned that did not meet their approval; that witnesses for the defendant were afraid to testify in the Harlan circuit court, and that, in the opinion of the affiants, he could not be afforded a fair and impartial trial in the county.

In opposition to the application, the commonwealth attorney and the county attorney filed a response, supported by the affidavits of five seemingly impartial witnesses, setting out the fact that the killing occurred at Lynch, which is located about 30 miles from the county seat, and in a remote corner of the county, and alleging that, although the decedent had many relatives and was widely known throughout the county, a large part of the citizenship was not affected thereby, and that the public mind was not greatly or unusually embittered against the defendant, or to such an extent as to prevent the selection of a fair and impartial jury from the citizens of the county, or to interfere with a fair and impartial trial of the case. Each of these witnesses expressed the opinion that the state of public feeling was not such as to impede or prevent a fair and impartial trial in the county by a jury selected from citizens thereof. None of these witnesses, however, denied the averments of defendant's affidavit that friends and relatives of the decedent had threatened to lynch the defendant or shoot him in the courtroom, if a verdict was returned that did not meet their approval, or that defendant's witnesses were afraid to testify in Harlan county.

These allegations, however, are denied in the response filed by the attorneys for the prosecution, but same is not sworn to. Because of these facts, it is insisted for the defendant that these averments stand undenied and must be accepted as true. To this, however, we are unable to accede. In the first place, it is not alleged in defendant's affidavit that any particular relative or friend of decedent made any threat, and it was therefore impossible for the commonwealth to meet this general charge, nor were the names given of defendant's witnesses who were afraid to testify for him, and that his apprehension in this latter respect was unfounded is clearly established by the fact that every one of the witnesses subp naed and called for the defense appeared and testified. The averment that defendant was in danger from the friends and relatives of decedent is also rather conclusively controverted by the fact that a brother-in-law of the decedent brought defendant safely back from the place of his arrest in Virginia to the jail in Harlan county, and without improper treatment of any kind.

We are therefore of the opinion that the court did not abuse a sound discretion in refusing the application for a change of venue. We are, however, of the opinion that the court erred in refusing to postpone the trial, as requested, until a day of the next week of this same term of court, in view of the recent employment of counsel for defendant, and that for this error a reversal would have to be ordered, if it were not for the fact, clearly established by the record, that the defendant was in nowise prejudiced thereby.

The sole ground for the request was that counsel had been employed only the evening before the day upon which the case was called for trial, and had not, therefore, had an opportunity to consult with their client or his witnesses, or otherwise properly prepare for the trial of so serious a charge. They, however, were afforded this opportunity, and for practically the length of time they requested the trial to be postponed for the purpose, by the fact the regular panel of the jury was soon exhausted, and the court was required twice to draw from the jury wheel new names and await their being brought into court, with the result that the actual trial of the case did not begin until the Tuesday following the Friday the case was set for trial and the effort to secure the jury begun. This gave the attorneys for the defendant from Thursday until Tuesday to prepare for the trial, the attendance of every witness they desired was secured, and the record attests the fact that the defense was ably and strongly presented. We are therefore clearly of the opinion that, although the court erred in denying to the attorneys for the defendant their request for a postponement for a few days, to enable them properly to prepare themselves and the case for trial, the defendant was in nowise prejudiced thereby.

Before taking up the several alleged errors in the admission of evidence, it will be necessary to state, as briefly as we can, the substance of the evidence: Lynch, although a good-sized mining camp, is unincorporated. The decedent, J V. Gross, a constable, and his brother, Allie Gross, a deputy sheriff, were the...