Hall v. Commonwealth

• Decision Date: 27 February 1934
• Citation: 253 Ky. 148,69 S.W.2d 3
• Parties: HALL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

69 S.W.2d 3

253 Ky. 148

HALL v. COMMONWEALTH.

Court of Appeals of Kentucky

February 27, 1934

Appeal from Circuit Court, Floyd County.

T. G Hall was convicted of shooting and wounding another, and he appeals.

Reversed.

Hill &amp Hobson and John W. Caudill, all of Prestonsburg, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

STANLEY Commissioner.

The appellant, T. G. Hall, was superintendent of certain mining properties at Ligon in Floyd county. He shot and inflicted a superficial wound on Famer Halbert, for which he has been convicted and sentenced to the penitentiary for two years. The injured man was a deputy sheriff, but, except that he had gone to the place and levied an attachment on property under the appellant's supervision, the fact that he was an officer had little or nothing whatever to do with the affray. The parties had been friendly, and the shooting was the result of one or the other, or perhaps both parties, being drunk. According to the evidence of the commonwealth, the defendant was drunk and the shooting was unjustifiable. According to the defendant's evidence, he was sober and the other man was drunk and he acted in his necessary self-defense. The grounds submitted for reversal are error in overruling the defendant's petition for a change of venue, the admission of incompetent evidence, and improper argument by the commonwealth's attorney.

The defendant seasonably filed his verified petition for a change of venue, supported by the affidavits of three witnesses, which met the requirements of the statutes. Section 1110, Kentucky Statutes. We state the substance of his charges: There was a public sentiment and feeling against the defendant due to the fact that he is a citizen of another state, and because of the business, social, and political standing of the prosecuting witness and his many relatives, and their wide acquaintance and personal following. He was a deputy sheriff and was related by blood and marriage to a majority of the citizens of the county qualified for jury service. The county judge, the circuit clerk, the sheriff, county treasurer, and a former magistrate were closely related to him, and they and the several deputy sheriffs were actively participating in the prosecution and could and would wield undue influence with any jury trying the case. Moreover, there was published in the local newspaper a highly inflammatory article concerning the alleged offense which tended to excite prejudice against the accused. That article is in the record, and the facts of the case, as disclosed on the trial, did not justify much of the publication. It is said in the petition that the defendant was without friends and relatives in the county. It is further charged that he was arrested and put in jail on October 8th and was denied bond until the following Monday, although the man whom he was charged with shooting was barely wounded. Though he waived examining trial, an order was entered passing his case for that purpose until October 14th, and he was required to execute bond in the sum of $5,000. No such trial was held. A good and sufficient appearance bond was signed on the 22d, but the county judge refused to accept the bond until the sheriff approved it. When the sheriff returned on the 24th, the bond was approved. The bond was excessive, the usual bond for such an offense being from $500 to $1,000. The sheriff or other persons interested in the prosecution instructed the jailer not to permit the defendant's attorney to confer with him while he was in jail, and his counsel was refused the privilege of conferring with a witness upon presentation in the county court at the instance of the sheriff.

The commonwealth did not controvert the charges in this petition by any responsive pleading...